State v. Backus

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 102,951

STATE OF KANSAS,
Appellee,

v.

JOHN BACKUS,
Appellant.


SYLLABUS BY THE COURT

1.
If the State convinces the appellate court that there is no reasonable possibility that
a district court's refusal to give a defense-requested lesser included offense instruction
contributed to or affected the ultimate jury verdict, then any error in failing to give the
instruction is harmless.

2.
On appeal, the test to determine whether an unpreserved instruction error, such as
the Allen-type instruction error in this case, requires reversal is whether the reviewing
court is firmly convinced that the jury would have reached a different verdict had the
instruction error not occurred.

3.
The test for determining whether a new trial is warranted on the ground of newly
discovered evidence has two parts: (1) whether the defendant has met the burden of
establishing that the newly proffered evidence could not with reasonable diligence have
been produced at trial, and (2) whether the evidence is of such materiality that it would be
likely to produce a different result upon retrial. Where a defendant is claiming to have
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been socializing with a person at the time of the alleged crime, the existence of that
person as an alibi witness is not newly discovered evidence.

4.
Photographs used to prove any element of a homicide, including the fact and
manner of death and the violent nature of the crime, are relevant even where the
defendant does not contest the cause of death. While the wholesale admission of similar
grotesque and bloody photographs which add nothing new to the case is improper, a
relevant photograph need not be excluded simply because it is gruesome, especially
where the nature of the offense necessarily creates gruesome results.

5.
K.S.A. 21-4634 precludes the district court from imposing any mandatory term of
imprisonment for premeditated first-degree murder upon a defendant who is determined
to be mentally retarded. A district court's determination that there is insufficient reason to
believe that a defendant is mentally retarded is reviewed for an abuse of discretion.

6.
The test for determining whether the cumulative effect of trial errors requires a
reversal of the defendant's conviction is whether the totality of circumstances
substantially prejudiced the defendant and denied the defendant a fair trial.

Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge. Opinion filed November 2,
2012. Affirmed.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for
appellant.

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Sheryl L. Lidtke, deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: John Backus directly appeals his convictions for premeditated first-
degree murder, aggravated kidnapping, and aggravated robbery in the 2005 death of
Dollar General manager Robin Bell in Bonner Springs. Backus' brief to this court raises
six issues, which we will paraphrase as follows: (1) The district court erred in denying
Backus' request for a lesser included offense instruction on second-degree murder; (2) the
district court erred in giving an "Allen-type" jury instruction; (3) the district court's denial
of Backus' new trial motion was an abuse of discretion; (4) the district court erroneously
admitted inflammatory photographs; (5) the district court erred in finding that the
evidence failed to establish a reason to believe that Backus is mentally retarded; and (6)
cumulative error denied the defendant a fair trial. Finding no error that would require
reversal, we affirm Backus' convictions.

FACTUAL AND PROCEDURAL OVERVIEW

In 2005, the defendant and three other young people, Robert Haberlein, Christa
Lewis, and an under aged female, A.R., set about planning a robbery to obtain money to
fix the defendant's car. After a reconnaissance trip, the group settled on the Dollar
General store as a target because it lacked surveillance cameras. Later, Lewis would tell a
detective that "a decision was made that there would be no witnesses, whoever was in the
store, that there would be no witnesses, that there was going to be a homicide."

On the day of the robbery, Lewis backed out at the last minute. The three others
entered the chosen store just before closing. Backus went to the back of the building
while Haberlein and A.R. pretended to shop. A.R. and Haberlein approached Bell, who
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was tending the cash register, and Haberlein put a gun to her head and demanded that she
empty the register into a bag. After taking the register money, Haberlein ordered Bell to
the back office, where shots were fired and Bell was forced to open the locked office
safe. She escaped momentarily, but Backus dragged her back into the store where he and
Haberlein savagely and unmercifully beat her with a number of objects before Haberlein
shot her in the head. Backus grabbed the bag of money and all three left the store.

Later that night, A.R. and Haberlein burned the robbers' bloody clothes. The next
day, A.R.'s mother helped her daughter and Haberlein dispose of the gun in exchange for
sharing the money with A.R., Haberlein, and Backus.

The crime remained unsolved for almost 2 years until Christa Lewis, Haberlein's
girlfriend and a friend of A.R., was reported as a runaway. On September 21, 2007,
Lewis and Haberlein appeared at the police station to discuss her runaway status. At
some point, the officers discovered that Haberlein was wanted for questioning about
another investigation, and during his interview, Haberlein revealed bits of information
regarding Bell's murder. That information eventually led the police to A.R., who gave
two statements (one videotaped) to the police about the events of that night. That led the
police back to Lewis, who provided a detailed statement, which included incriminating
statements made by Backus and Haberlein in the days following the incident.

Backus was eventually charged with first-degree premeditated murder, or in the
alternative, first-degree felony murder; aggravated kidnapping; and aggravated robbery.
Haberlein was charged and tried separately. As of the date of Backus' trial, A.R. had not
yet been tried for the crime, but in exchange for her testimony against Haberlein and
Backus, the State had agreed to try her as a juvenile.

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The forensic pathologist who performed the autopsy provided extensive testimony
about the injuries inflicted upon Bell, concluding that she "died as a result of being
basically bludgeoned, and then also she had contributory effects from the gunshot
wounds." The doctor opined that Bell was still alive when she received the gunshot
wounds, albeit he could not discern whether they occurred before or after the
bludgeoning injuries.

At trial, the State introduced into evidence numerous photographs of the autopsy
and the crime scene. Backus objected to the admission of 10 of those photos as unduly
gruesome, repetitive, and prejudicial. The district court sustained the objection to two of
the photos that it regarded as cumulative, but admitted the other eight photographs.

Backus also requested a lesser included offense instruction on second-degree
murder. The court declined the request, reasoning that the evidence of the underlying
felony in the felony-murder charge was so strong that there was no basis for including the
requested instruction. Also, without objection from either party, the trial court gave an
Allen-type instruction that included the declaration: "Another trial would be a burden on
both sides."

After the jury convicted Backus of first-degree premeditated murder, aggravated
kidnapping, and aggravated robbery, he filed a motion for new trial. One basis for the
motion was an allegation of newly discovered evidence, supported by an affidavit from
Backus' father. In the affidavit, Backus' father said that, although he had initially
forgotten, he was now certain that Backus was at his home assisting with the sorting of
Christmas decorations from 6 p.m. until they went to bed on the night of the murder. The
motion also alleged that there was insufficient direct evidence tying Backus to the
murder, that his motion for a directed verdict should have been granted, that the
prosecutor made improper arguments during closing based on evidence not in the record,
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and that the admission of the contested photographs was erroneous. After entertaining
arguments, the district court denied the motion in full.

Because the State filed notice that it intended to seek the hard 50 life sentence,
Backus also filed a motion to determine his status as a mentally retarded person pursuant
to K.S.A. 21-4634, because the court may not impose a hard 50 sentence on a mentally
retarded person. When the motion was initially filed, the district court allowed Backus'
father to testify regarding the issue. Specifically, Backus' father testified that Backus had
never officially been diagnosed as mentally retarded, although his high school had listed
him as a special education student. On that showing, the district court denied the motion
for an evaluation but left open the possibility of the defense renewing the motion when it
obtained Backus' school records and other documentation. After those records were filed,
the district court entertained the renewed motion, and again denied it at the first stage,
concluding, "Certainly there were some learning problems and significant other
problems, but nothing that would be an indication that the defendant was mentally
retarded. . . . I don't think there is a basis for me to appoint physicians or psychologists to
investigate further."

Consequently, the district court imposed the hard 50 life sentence for first-degree
premeditated murder based on the lack of mitigating factors and the weight of the
aggravating factors: That "the crime was committed in order to avoid or prevent arrest or
prosecution; [and] that the crime was committed in an especially heinous, atrocious or
cruel manner." The court imposed consecutive sentences of 586 months for aggravated
kidnapping and 59 months for aggravated robbery. The case is now before us on direct
appeal.

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LESSER INCLUDED OFFENSE INSTRUCTION ON SECOND-DEGREE MURDER

The State charged Backus in the alternative with both types of first-degree murder:
premeditated murder and felony murder. Backus requested that the trial court give a
lesser included offense instruction on second-degree intentional murder. At that time,
there was a special rule for a felony-murder charge whereby lesser included offense
instructions were required only when the evidence of the underlying felony was weak,
inconclusive, or conflicting. See State v. Berry, 292 Kan. 493, 503, 254 P.3d 1276 (2011)
(citing State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 [2009]). The trial judge
denied the requested instruction based on the special felony-murder rule but did not
assess whether the lesser included offense instruction was appropriate for the
premeditated first-degree murder charge on which Backus was ultimately convicted.
Backus contends that the trial court's erroneous omission requires us to reverse his
murder conviction and remand for a new trial.

Standard of Review/Legal Maxims

Recently, we attempted to set forth a more consistent analytical progression for
reviewing jury instruction issues with accompanying standards of review for each step.
See State v. Plummer, 295 Kan. ___, Syl. ¶ 1, 283 P.3d 202 (August 24, 2012). The last
step in the progression applies where the appellate court has determined that the district
court erred. At that point, "the appellate court must determine whether the error was
harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan.
541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012)." Plummer, 295 Kan. ___,
Syl. ¶ 1. "This assessment of whether there has been injustice would involve a review of
the entire record and a de novo determination. Cf. State v. Ward, 292 Kan. 541, Syl. ¶ 8,
256 P.3d 801 (2011) (harmless error analysis performed de novo), cert. denied 132 S. Ct.
1594 (2012)." State v. Williams, 295 Kan. ___, ___ P.3d ___ (September 21, 2012) (slip
op. at 13).
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Analysis

It was not enough for the district court to apply the special lesser included offense
rule then applicable to the alternative felony murder charge. The court should have
analyzed the propriety of giving a lesser included offense instruction for the first-degree
premeditated murder charge under the statutory directive in K.S.A. 22-3414(3). That
provision requires the trial court to give a requested lesser included offense instruction if
"there is some evidence which would reasonably justify a conviction of [that] lesser
included crime."

But in fairness to the trial court, the entire landscape of lesser included offense
instructions has undergone a makeover since Backus' trial. Therefore, we take the liberty
of moving directly to the final step in the analytical progression to resolve the issue in
this case on the basis that the failure to give a second-degree murder instruction was
harmless error.

As noted, we use the harmlessness test set forth in Ward:

"[B]efore a Kansas court can declare an error harmless it must determine the error did not
affect a party's substantial rights, meaning it will not or did not affect the trial's outcome.
The degree of certainty by which the court must be persuaded that the error did not affect
the outcome of the trial will vary depending on whether the error implicates a right
guaranteed by the United States Constitution. If it does, a Kansas court must be
persuaded beyond a reasonable doubt that there was no impact on the trial's outcome, i.e.,
there is no reasonable possibility that the error contributed to the verdict. If a right
guaranteed by the United States Constitution is not implicated, a Kansas court must be
persuaded that there is no reasonable probability that the error will or did affect the
outcome of the trial." 292 Kan. at 565.

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Again, the parties did not have the benefit of this holding when they submitted
their briefs in this case. Therefore, we are not presented with any arguments on whether
the error implicates a right guaranteed by the United States Constitution, e.g., a
defendant's right to present a defense. But that omission will not deter our resolution of
this issue here and now, because even under the more stringent test, we are firmly
convinced beyond a reasonable doubt that there was no impact on the trial's outcome.

The jury heard a detective testify that Lewis, the nonparticipating co-conspirator,
told him that after the four had selected the Dollar General store as their target, "a
decision was made that there would be no witnesses, whoever was in the store, that there
would be no witnesses, that there was going to be a homicide." Although Lewis did not
repeat that statement in her trial testimony, the evidence of what transpired in the store
corroborated that intent. The jury heard that, when the victim escaped out of the store,
Backus ran her down and forcibly brought her back into a storeroom. There, he and
Haberlein savagely beat her about the head, utilizing multiple objects as weapons,
including a stepladder, a piece of which the pathologist found inside the victim's head
during the autopsy. If the jury believed that Backus participated in the killing, it had to
find that it was a cold, calculated, and premeditated act. There is no reasonable possibility
that a lesser included offense instruction would have contributed to the verdict.

ALLEN-TYPE INSTRUCTION

For the first time on appeal, Backus complains that the district court gave an
instruction which included the statement that another trial would be a burden on both
sides. He points out that we have found that jury instruction to be erroneous. See State v.
Salts, 288 Kan. 263, 266-67, 200 P.3d 464 (2009).

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But because Backus did not properly preserve the instruction complaint, K.S.A.
22-3414(3) requires that the omission be clearly erroneous in order to be both reviewable
and reversible. See Williams, slip op. at 13. The test to determine whether an unpreserved
instruction error requires reversal is "whether the reviewing court is firmly convinced that
the jury would have reached a different verdict had the instruction error not occurred."
Williams, slip op. at 13.

Standard of Review/Legal Maxims

An assessment of whether an unpreserved instruction error requires reversal
involves a review of the entire record and a de novo determination. Williams, slip op. at
13.

Analysis

The State points out that our decision in Salts had not been filed when this case
was tried. Nevertheless, it concedes that advising the jury that "another trial would be a
burden on both sides" was erroneous. The State's position is that the evidence was
substantial and compelling, leaving no real possibility of a different verdict if the jury had
not heard the Allen-type instruction. We agree.

As we clarified in Williams, Backus must shoulder the burden of convincing us
that the jury would have reached a different verdict had the instruction error not occurred.
In his brief, Backus acknowledges that no Kansas case has yet found that the offending
instruction language, standing alone, creates a reversible error. Yet the only argument
that he proffers as to why his case should be the first is contained in one sentence: "The
defendant asserts that, without the erroneous language, there is a likelihood that the jury
would not have returned guilty verdicts in this case."

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Given Backus' concession in the first issue that "[t]he evidence was sufficient to
prove premeditation," and in the absence of any evidence that the jury was having
difficulty reaching a verdict, we hold that the defendant has failed to carry his burden to
convince us that the jury would have reached a different verdict. The instruction error is
not reversible.

DENIAL OF NEW TRIAL MOTION

In a motion for new trial, Backus claimed that he had new evidence in the form of
his father's recent recollection that, on the night of the murder, Backus had been with his
father. Backus argues that the evidence was new because it did not exist until the father
remembered it, sometime after the trial.

Standard of Review/Legal Maxims

Both parties agree that this court reviews a district court's decision on a motion for
a new trial based on newly discovered evidence for an abuse of discretion. See State v.
Rojas-Marceleno, 295 Kan. ___, Syl. ¶ 3, 285 P.3d 361 (2012); Moncla v. State, 285
Kan. 826, 839-40, 176 P.3d 954 (2008) (reviewing order denying motion for new trial
based on newly discovered evidence for abuse of discretion).

"The test for determining whether a new trial is warranted on the ground of newly
discovered evidence has two parts: (1) whether the defendant has met the burden of
establishing that the newly proffered evidence could not with reasonable diligence have
been produced at trial and (2) whether the evidence is of such materiality that it would be
likely to produce a different result upon retrial." 281 Kan. at 992 (citing State v. Norton,
277 Kan. 432, 437, 85 P.3d 686 [2004]).

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Analysis

The only materiality of the father's testimony is to establish an alibi for Backus,
i.e., he was with his father assembling Christmas decorations rather than at the Dollar
General store bludgeoning a woman to death. By necessity, Backus had to have personal
knowledge of his own whereabouts. He did not have to learn where he was on the night
of the murder from his father's recollection, i.e., the fact that an alibi witness existed was
not unknown to Backus at the time of the trial.

Moreover, Backus' specious argument that a witness need not exercise diligence in
producing evidence at trial is completely unavailing. If one believes Backus' father's
affidavit, Backus had to personally know that his father was a potential alibi witness, and
he was required to exercise diligence in producing that evidence. The record does not
reflect that Backus can clear the first hurdle of establishing that the evidence was truly
newly discovered. The district court did not err in refusing to order a new trial based on
the father's after-the-fact affidavit.

INFLAMMATORY PHOTOGRAPHS

As noted, Backus objected at trial to the admission of 10 photographs as being
unduly gruesome, repetitive, and prejudicial. The district court reviewed the photographs
and granted the motion to exclude two of them as being cumulative. Backus contends that
the district court erred in admitting the other eight photographs.

Standard of Review

"When reviewing the admission of photographic evidence, an appellate court's
first step is to determine whether the photos are relevant. The decision to admit
photographs alleged to be overly repetitious, gruesome, or inflammatory, i.e., prejudicial,
is reviewed for an abuse of discretion. [Citations omitted.] The party who challenges that
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decision bears the burden of showing such abuse. [Citation omitted.] Admission of
photographs that are unduly repetitious and cumulative, or that are introduced solely for a
prejudicial purpose, constitutes an abuse of discretion, albeit such a finding is rare in a
murder case." State v. Edwards, 291 Kan. 532, 549, 243 P.3d 683 (2010).

See State v. Burnett, 293 Kan. 840, 853, 270 P.3d 1115 (2012); State v. Riojas, 288 Kan.
379, 387, 204 P.3d 578 (2009).

Analysis

Backus complains that because the manner of Bell's death was not disputed at trial,
the photographs were largely irrelevant. That argument has been rejected by this court.
"Even where the defendant concedes the cause of death, the prosecution has the burden to
prove all the elements of the crime charged . . . , including the fact and manner of death
and the violent nature of the crime . . . ." State v. Clark, 261 Kan. 460, 477, 931 P.2d 664
(1997); see State v. Kirby, 272 Kan. 1170, 1188, 39 P.3d 1 (2002). We have explained the
relevancy of photographs in homicide cases as follows:

"'"'Photographs depicting the extent, nature, and number of wounds inflicted are
generally relevant in a murder case. [Citation omitted.] Photographs which are relevant
and material in assisting the jury's understanding of medical testimony are admissible.
Specifically, photographs which aid a pathologist in explaining the cause of death are
admissible. [Citation omitted.] Photographs used to prove the manner of death and the
violent nature of the crime are relevant and admissible. [Citation omitted.]'"' State v.
Parker, 277 Kan. 838, 847, 89 P.3d 622 (2004) (quoting State v. Green, 274 Kan. 145,
147, 48 P.3d 1276 [2002]).

"Additionally, because the State has the burden to prove every element of the
crime charged, photographs used to prove the elements of the crime, including the fact
and manner of death and the violent nature of the crime, are relevant even if the cause of
death is not contested. [Citation omitted.] Finally, while we have stated that the
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'"wholesale admission of similar grotesque and bloody photographs which add nothing
new to the state's case" is improper,' a photograph need not be excluded simply because it
is gruesome. [Citation omitted.]" Burnett, 293 Kan. at 853-54.

We note that Backus has not included the photographs in the record on appeal in
his case, although he refers us to the record on appeal in Haberlein's appellate case.
Nevertheless, the district court acknowledged that almost all of the photographs,
including some admitted without objection, were gruesome because of the gruesome
nature of the crime. Yet the court thoughtfully reviewed and discussed each photograph,
identifying permissible reasons for each photograph that was admitted over objection.
The photographs were relevant and admissible, and the district court exercised its
discretion in an appropriate manner. There is no error here.

REASON TO BELIEVE THAT DEFENDANT WAS MENTALLY RETARDED

K.S.A. 21-4634 precludes the district court from imposing any mandatory term of
imprisonment for premeditated first-degree murder upon a defendant who is determined
to be mentally retarded. The statute provides that, upon a defense counsel request for a
determination of whether the defendant is mentally retarded, the court is to take certain
steps, as follows:

"(a) If a defendant is . . . convicted of the crime of murder in the first degree
based upon the finding of premeditated murder, the defendant's counsel . . . may request a
determination by the court of whether the defendant is mentally retarded. If the court
determines that there is not sufficient reason to believe that the defendant is mentally
retarded, the court shall so find and the defendant shall be sentenced in accordance with
K.S.A. 21-4635 through 21-4638. If the court determines that there is sufficient reason to
believe that the defendant is mentally retarded, the court shall conduct a hearing to
determine whether the defendant is mentally retarded.
"(b) At the hearing, the court shall determine whether the defendant is mentally
15



retarded. The court shall order a psychiatric or psychological examination of the
defendant. For that purpose, the court shall appoint two licensed physicians or licensed
psychologists, or one of each, qualified by training and practice to make such
examination, to examine the defendant and report their findings in writing to the judge
within 10 days after the order of examination is issued. The defendant shall have the right
to present evidence and cross-examine any witnesses at the hearing. No statement made
by the defendant in the course of any examination provided for by this section, whether
or not the defendant consents to the examination, shall be admitted in evidence against
the defendant in any criminal proceeding.
"(c) If, at the conclusion of a hearing pursuant to this section, the court
determines that the defendant is not mentally retarded, the defendant shall be sentenced in
accordance with K.S.A. 21-4635 through 21-4638.
"(d) If, at the conclusion of a hearing pursuant to this section, the court
determines that the defendant is mentally retarded, the court shall sentence the defendant
as otherwise provided by law, and no mandatory term of imprisonment shall be imposed
hereunder.
. . . .
"(f) As used in this section, 'mentally retarded' means having significantly
subaverage general intellectual functioning, as defined by K.S.A. 76-12b01 and
amendments thereto, to an extent which substantially impairs one's capacity to appreciate
the criminality of one's conduct or to conform one's conduct to the requirements of law."
K.S.A. 21-4634.

Here, the district court dealt with the request in the first step, in subsection (a), by
finding that there was not sufficient reason to believe that Backus was mentally retarded.
On appeal, Backus argues that the evidence of mental retardation was enough to cause
the district court to sufficiently believe he was mentally retarded and thus require it to
proceed to order an evaluation and hearing.

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Standard of Review

The parties argue for the application of different standards of review. Backus
attempts to frame the issue as one requiring statutory interpretation, which would involve
a legal question subject to an unlimited review. Cf. State v. Jefferson, 287 Kan. 28, 33,
194 P.3d 557 (2008). But we are not presented with the task of construing what the
statute means when it says: "If the court determines that there is not sufficient reason to
believe that the defendant is mentally retarded, the court shall so find and the defendant
shall be sentenced in accordance with K.S.A. 21-4635 through 21-4638." K.S.A. 21-
4634(a). Rather, the issue Backus raises is whether the evidence was sufficient to
establish a sufficient reason to believe he was mentally retarded.

The State argues for an abuse of discretion standard, lobbying us to analogize to
those cases determining whether a defendant is competent to stand trial under K.S.A. 22-
3302. See, e.g., State v. Lopez, 271 Kan. 119, 127, 22 P.3d 1040 (2001) ("K.S.A. 22-3302
vests the trial court with authority to determine the question of a defendant's competence
to stand trial. On appeal, this court's inquiry is limited to whether the trial court abused its
discretion."); see also State v. Green, 245 Kan. 398, 412-13, 781 P.2d 678 (1989)
("Whether a hearing on competency is needed during trial is a matter which is left to the
sound discretion of the trial court, and we will not disturb that decision absent an abuse of
discretion.").

The State's proposed analog is seductive. Under K.S.A. 21-4634(a), it is the
district court that must determine whether there is sufficient reason to believe the
defendant is mentally retarded, and, just like the competency to stand trial scenario, the
trial judge is in a superior position to make that determination after observing and
listening to the defendant. Accordingly, it is appropriate to defer to the district court's
assessment by applying an abuse of discretion standard. Therefore, we will evaluate
17



whether any reasonable person would take the view adopted by the district judge. See
State v. Mondragon, 289 Kan. 1158, 1160-61, 220 P.3d 369 (2009).

Analysis

Ultimately, however, our selection of a standard of review does not impact the
result in this case. Backus cannot prevail under any review standard simply because there
is an absence of any evidence of mental retardation.

In making the assessment under K.S.A. 21-4634(a), the district court was directed
to utilize the definition of mental retardation set forth in K.S.A. 76-12b01, which states:

"(d) 'Mental retardation' means significantly subaverage general intellectual
functioning existing concurrently with deficits in adaptive behavior and manifested
during the period from birth to age 18.
. . . .
"(i) 'Significantly subaverage general intellectual functioning' means
performance which is two or more standard deviations from the mean score on a
standardized intelligence test specified by the secretary." K.S.A. 76-12b01.

The trial court gave Backus two opportunities to present some evidence, but even
viewed in the light most favorable to Backus, the evidence arguably failed to establish
that Backus even qualified as a special education student, much less as mentally retarded.
Backus' father conceded that Backus had never been diagnosed as mentally retarded and,
in fact, said that "[w]e had to fight [the school district] to get him listed as a special
education, special needs student for several years, and they finally agreed to that through
the high school years." Backus' school records indicated that his test scores from 1993,
1999, and 2003 did not qualify him for special education services. More to the point,
Backus' test score did not meet the statutory definition of mentally retarded because it
18



was not two standard deviations or more below the mean. Accordingly, the district court
did not err in finding insufficient reason to believe that Backus was mentally retarded.

CUMULATIVE ERROR

Backus argues that even if no individual trial error is sufficient to support a
reversal of his conviction, the cumulative effect of multiple errors was so great as to
require reversal. The test is "'whether the totality of circumstances substantially
prejudiced the defendant and denied the defendant a fair trial. No prejudicial error may be
found upon this cumulative effect rule, however, if the evidence is overwhelming against
the defendant.'" Edwards, 291 Kan. at 553 (quoting State v. Ellmaker, 289 Kan. 1132,
Syl. ¶ 12, 221 P.3d 1105 [2009]).

Standard of Review/Legal Maxims

By necessity, if this court must apply a totality of the circumstances test, we will
have to review the entire record and engage in an unlimited review. Cf. State v. Ward,
292 Kan. 541, Syl. ¶ 8, 256 P.3d 801 (2011) (harmless error analysis performed de novo).

Analysis

Further, for errors to have a cumulative effect that transcends the effect of the
individual errors, there must have been more than one individual error. See State v.
Houston, 289 Kan. 252, 277, 213 P.3d 728 (2009); State v. Nguyen, 285 Kan. 418, 437,
172 P.3d 1165 (2007). Above, we found that the giving of the Allen-type instruction was
error. We also found that the district court applied the incorrect test for determining
whether to give a lesser included offense instruction on second-degree murder. Arguably,
then, more than one error exists which could be accumulated.

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Nevertheless, the instructional errors were not such as would lead us to the
conclusion that Backus was denied a fair trial. Moreover, the inculpatory evidence,
especially the eyewitness testimony, would certainly fit within the category of
overwhelming evidence. In short, we are firmly convinced beyond a reasonable doubt
that the result of Backus' trial would have been no different without the instructional
errors.

Affirmed.