State v. Berry

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,512

STATE OF KANSAS,
Appellee,

v.

GREGORY L. BERRY,
Appellant.


SYLLABUS BY THE COURT

1.

The standard of review governing denial of a motion to dismiss depends on the
ground on which dismissal was sought. When insufficient evidence is argued, we view
the evidence in the light most favorable to the prosecution to determine whether a rational
factfinder could find the defendant guilty beyond a reasonable doubt.

2.

Lesser included offense jury instructions are governed by K.S.A. 22-3414(3). It
directs that instructions must be given when there is some evidence that would
reasonably justify a conviction of some lesser included crime.

3.

When a party claims K.S.A. 22-3414(3) requires giving an instruction on a lesser
included crime, the analysis focuses on the evidence supporting the lesser offense.

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4.

The judicially created felony-murder instruction rule requires lesser included
offense instructions only when evidence of the underlying felony is weak, inconclusive,
or conflicting. The analysis focuses on the evidence supporting the underlying felony and
not the evidence supporting lesser offenses.

5.

K.S.A. 22-3414(3) does not exclude felony murder from its mandate and makes no
exception for the felony-murder instruction rule regarding lesser included offense
instructions.

6.

After reviewing the felony-murder instruction rule's historical development, we
conclude its use should cease. K.S.A. 22-3414(3) should be applicable to felony murder.
Instructions on the lesser degrees of homicide are proper in felony-murder cases when
there is some evidence reasonably justifying a conviction of some lesser included crime
beyond a reasonable doubt. Language to the contrary in previous opinions is disapproved.

7.

A new rule for conducting criminal prosecutions is to be applied to all cases, state
or federal, pending on direct review or not yet final. A conviction generally is not
considered final until (a) the judgment of conviction is rendered; (b) the availability of an
appeal is exhausted; and (c) the time for any rehearing or final review has passed.

Appeal from Sedgwick District Court; JOHN J. KISNER, Jr., judge. Opinion filed July 22, 2011.
Reversed and remanded.

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Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief
for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston,
district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Gregory L. Berry directly appeals his conviction and sentence for first-
degree felony murder. Berry struck and killed another motorist during a high-speed
getaway from a traffic stop. He was apprehended, and cocaine was discovered. The
underlying felony for the first-degree felony-murder conviction was possession of
cocaine. At trial, Berry requested lesser included offense instructions for second-degree
reckless murder, involuntary manslaughter, and vehicular homicide. His request was
denied pursuant to the judicially created felony-murder instruction rule, which treats
felony murder differently when considering whether to instruct a jury on lesser included
offenses. See State v. Jones, 287 Kan. 547, 556-57, 198 P.3d 756 (2008). We have
jurisdiction under K.S.A. 22-3601(b)(1) (direct appeal for conviction of an off-grid
crime; life sentence).

We reverse Berry's conviction and sentence on the felony-murder charge and
remand for a new trial because we hold the judicially created felony-murder instruction
rule must be abandoned. We do so after carefully reviewing the rule's history and
concluding that the rationale for adopting it was flawed. We hold that the better course is
to follow K.S.A. 22-3414(3)—the statute governing when lesser included offenses must
be issued. That legislative mandate provides no exception for felony murder and makes
no allowance for the felony-murder instruction rule. We explain our decision below.


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FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Berry of felony murder, possession of cocaine, and driving while
a habitual violator. He pleaded no contest to criminal possession of a firearm. These
convictions stem from a chain of events beginning at 1:45 a.m. on November 25, 2004,
when a Sedgwick County Sheriff's Deputy driving a marked patrol vehicle spotted a
dark-colored Cadillac Berry was driving. The deputy observed what he believed to be an
illegitimate 30-day license tag on the vehicle. The Cadillac pulled into a motel parking lot
before the deputy could initiate a stop. The deputy waited out of view for the Cadillac to
continue down the street. When the Cadillac exited the parking lot, the deputy followed.

Both cars turned and traveled about a block before the deputy activated his patrol
car's emergency lights. The Cadillac pulled over. The deputy exited his vehicle and
approached. He examined the 30-day tag more closely. It appeared to be legitimate. The
deputy then went to the driver's side window and asked Berry for his driver's license and
insurance. Berry did not respond verbally. He looked around, put his vehicle into drive,
and sped away. The deputy then ran back to his vehicle and pursued Berry with the patrol
car's emergency lights and siren activated.

The deputy testified at trial that his vehicle's speed reached 70 miles per hour,
which was still not enough to overtake Berry, who kept pulling further ahead. Eventually,
the deputy slowed and deactivated his lights and siren because he knew a nearby bar was
about to close. The deputy said he was concerned the high-speed chase would endanger
the departing patrons, so he hoped turning off his emergency equipment would cause
Berry to slow down. The deputy lost sight of the Cadillac for 30 to 45 seconds, but then
saw a large plume of smoke and dust near an approaching intersection. When the deputy
arrived, he saw the aftermath of a collision involving the Cadillac and a Chrysler driven
by Vicki K. Brown. The Chrysler was struck on the passenger-side door, with the driver
trapped inside. Brown died from injuries sustained in the accident.
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When a second deputy arrived at the scene, he saw Berry, who had exited his
vehicle and was wearing a black coat, running out of a ditch. Berry collided with the
second deputy's vehicle, struck the side mirror, but continued to evade police. A short
time later, Berry barged into Fernando Mendoza's house uninvited. He did not know
Mendoza or his family. Mendoza testified Berry said he needed a place to rest, displayed
a "big ole wad of money," and offered to pay to stay there. Berry told Mendoza the police
were after him and that he was a drug dealer. Mendoza's family called police. When
Berry was apprehended, he was not wearing a black coat.

Berry consented to a medical assessment to determine if he was injured. He was
taken to a hospital, examined, and released to another deputy. But as Berry stood up from
the examining table and turned to be handcuffed, a clear plastic bag containing a white
rock-like substance fell from his boxer shorts, landing on the floor between his legs. The
bag held 9.31 grams of cocaine. A second clear plastic bag with white rocks was found
by a K-9 unit searching in a field near where the unit's dog identified Berry's trail. The
second bag contained 1.8 grams of cocaine. At another location in the field, a black coat
was found. Footprints also were visible, with the trail ending at Mendoza's house.

Berry was charged with: (1) first-degree felony murder based on the underlying
felonies of possession of cocaine with intent to sell or, in the alternative, possession of
cocaine; (2) aggravated burglary; (3) felony obstructing official duty; (4) possession of
cocaine with intent to sell; (5) possession of cocaine; (6) criminal possession of a firearm;
and (7) driving while a habitual violator.

Before trial, Berry filed a motion to dismiss the felony-murder charge based on
two premises. First, Berry argued the victim's death was not within the res gestae of the
alleged cocaine possession. He claimed that crime was complete before the car chase
began, so the victim's death did not occur during commission of a felony as required by
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the felony-murder statute. See K.S.A. 21-3401(b). Second, Berry argued there was no
causal connection with the accident because at the time Berry's car struck and killed the
victim, the deputy had abandoned pursuit and Berry was no longer running from police.
The motion was overruled. Subsequent motions on the same grounds for judgment of
acquittal were denied twice more. One occurred at the close of the State's case and the
other at the conclusion of all the evidence.

The jury convicted Berry of felony murder, possession of cocaine, and driving
while being a habitual violator. He pled no contest to criminal possession of a firearm. He
was acquitted of aggravated burglary for the Mendoza home intrusion, felony obstructing
official duty, and possession of cocaine with intent to sell. He was sentenced to life
imprisonment, with a mandatory minimum of 20 years for the felony-murder conviction.
He received a consecutive 15-month sentence for possession of cocaine. The remaining
sentences ran concurrently to the felony-murder sentence.

Berry filed a timely appeal but failed to properly docket it, resulting in its
dismissal. The district court later held a hearing under State v. Ortiz, 230 Kan. 733, 640
P.2d 1255 (1982) (recognizing limited exceptions to permit untimely completion of
appeal), and found Berry entitled to continue with his appeal.

Berry raises nine issues: (1) whether there was sufficient evidence of a direct
causal connection between the cocaine possession and the killing to support the felony-
murder charge; (2) whether Berry was entitled to jury instructions on lesser included
offenses of felony murder; (3) whether the district court was required to issue an
additional instruction on causation for felony murder; (4) whether the district court
improperly restricted Berry's closing argument; (5) whether the prosecutor committed
misconduct by misstating the law on causation during closing arguments; (6) whether
Berry preserved for appeal an ineffective assistance of counsel claim; (7) whether the
district court erred by failing to raise sua sponte an ineffective assistance of counsel
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inquiry; (8) whether cumulative error deprived Berry of his right to a fair trial; and (9)
whether Berry's sentence was unconstitutional because his criminal history score was not
proven to the jury.

We address first Berry's claim that the felony-murder charge should have been
dismissed before trial because there was insufficient evidence of a causal connection
between the traffic fatality and the underlying felony (possession of cocaine). We decide
that issue against Berry. Next we consider whether the jury should have been instructed
on lesser included offenses. Our decision to abandon the felony-murder instruction rule in
favor of following K.S.A. 22-3414(3) resolves that decision in Berry's favor and renders
moot the remaining issues. But we will discuss briefly his arguments relating to his
request for an additional causation instruction and the prosecutor's closing argument
because it may be helpful on retrial. Additional facts are included below as required.

SUFFICIENCY OF THE EVIDENCE

Berry argues first that the district court erred by denying his pretrial motion to
dismiss the felony-murder charge. He contends there was insufficient evidence of a
causal connection between the traffic fatality and the cocaine possession charge.

K.S.A. 21-3401(b) defines felony murder as "the killing of a human being
committed . . . in the commission of, attempt to commit, or flight from an inherently
dangerous felony, as defined in K.S.A. 21-3436." Possession of cocaine is an inherently
dangerous felony. See K.S.A. 21-3436(a)(14) (any felony under K.S.A. 65-4160); K.S.A.
65-4160(b) (person has prior conviction under this section or substantially similar offense
and possesses drug listed in K.S.A. 65-4107). We note K.S.A. 21-3436 has since been
amended, and K.S.A. 65-4160 has been repealed and replaced with K.S.A. 2010 Supp.
21-36a06.

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The felony-murder statute requires two causation elements. First, the death must
be within the res gestae of the underlying crime, regardless of the sequence of events
leading to the death. State v. Beach, 275 Kan. 603, 609-10, 67 P.3d 121 (2003) (citing
State v. Jacques, 270 Kan. 173, 189-90, 14 P.3d 409 [2000]). We define res gestae in the
felony-murder context as "acts done before, during, or after the happening of the
principal occurrence when those acts are so closely connected with the principal
occurrence as to form, in reality, a part of the occurrence." State v. Jackson, 280 Kan.
541, 545, 124 P.3d 460 (2005). Second, there must be a direct causal connection between
the felony and the homicide. Beach, 275 Kan. at 612. Our case law finds this direct causal
connection exists unless an extraordinary intervening event supersedes the defendant's act
and becomes the sole legal cause of death. 275 Kan. at 612.

In his motion to dismiss, Berry argued the fatality was not within the res gestae of
the cocaine possession. He claimed the cocaine possession was complete before the death
occurred. He also argued there was insufficient evidence of a causal connection because
at the time Berry's car struck the victim's vehicle, the deputy had abandoned pursuit and
Berry was no longer running from police.

But Berry did not couch this argument in terms of an intervening or superseding
event. He simply argued there was no causal connection because he claims the officer
quit the chase before the killing. Berry recites no evidence to support his assertion that he
was no longer running from police or that the police were no longer pursuing him. The
only evidence in the record is that the officer deactivated his emergency lights and sirens
in the hope that Berry would slow to a safer speed.

No doubt recognizing this weakness now on appeal, Berry abandons the res gestae
claim and solely argues there was insufficient evidence to make a causal connection
between the cocaine possession and the fatality. And in doing so, he offers this court a
different theory from what he advanced to the district court. He contends now it was his
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decision to evade the traffic stop that was the legal cause of the victim's death and this
decision was unrelated to the cocaine possession. To support this, Berry notes he fled
after the officer requested his driver's license and insinuates his effort to escape was to
avoid being caught while driving on a suspended license—not because he possessed more
than 11 grams of cocaine.

Standard of Review

The standard of review for denial of a motion to dismiss depends on the ground on
which dismissal was sought. When insufficient evidence is the basis alleged, our review
"asks whether review of all the evidence, viewed in the light most favorable to the
prosecution, convinces the appellate court that a rational factfinder could have found the
defendant guilty beyond a reasonable doubt." State v. Garcia, 282 Kan. 252, 259-60, 144
P.3d 684 (2006).

Discussion

A defendant can avoid responsibility for a death occurring during the commission
of a felony "'if an extraordinary intervening event supersedes the defendant's act and
becomes the sole legal cause of death.'" Beach, 275 Kan. at 612 (quoting State v. LaMae,
268 Kan. 544, 555, 998 P.2d 106 [2000]). In this context, the three factors examined are
time, distance, and the causal relationship between the underlying felony and the killing.
275 Kan. at 613. Two prior cases dealing with sufficiency of evidence of a causal
connection are relevant: Beach, 275 Kan. at 611-14, and Jackson, 280 Kan. at 546-49.
We detail both cases below to explain our rationale in denying Berry's argument.

In Beach, the defendant was convicted of felony murder based on the underlying
felony of sale of methamphetamine. The defendant coordinated the sale. She drove a
companion and the supplier to a house where the transaction was to take place. Then,
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Beach met the victim and led him back to that location. Beach took the money for the
drugs from the victim and walked up to the house. Then she heard her companion shoot
the victim and another person. Beach left with the shooter. Beach later claimed she did
not know her companion was planning to shoot the victim. She argued the plan and
actions of her companion and the supplier caused the victim's death, so their decision to
kill the victim was an extraordinary intervening event.

In analyzing the three factors, the Beach court held the time criteria was satisfied
because the two events took place simultaneously. The distance factor was satisfied
because the defendant chose the location for the drug transaction and the victim waited
there in the car for her to complete it. The court then found the events were causally
related—the third factor—because Beach told the shooter about the drug sale and that the
victim was carrying a lot of cash. The court reasoned that "[a] person with a large amount
of cash intent on engaging in an illegal transaction is a foreseeable target of violent
crime." 275 Kan. at 614.

The facts in Jackson are very similar. Jackson's felony-murder conviction was
based on the underlying felony of selling cocaine. The victim contacted a third party
looking for drugs. That person contacted Jackson, who secured the drugs through two
other persons. Jackson then picked up the drug suppliers and suggested they meet the
victim at a house. When they could not enter, the victim and one of the suppliers got into
a fight, and the victim was shot and killed. To avoid the felony-murder charge, Jackson
argued the supplier's act of shooting the victim was an extraordinary intervening event
that broke the causal connection between the drug transaction and the murder. Citing
Beach, the Jackson court rejected that argument. It found the time factor supported
conviction because the victim was shot while the victim and the supplier were in the
process of completing the drug transaction. It found the distance factor satisfied because a
conversation regarding the transaction occurred a few feet from the shooting. As to the
causal relationship, the court noted the defendant arranged the drug transaction and was
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aware selling drugs was a dangerous business in which most people carry guns. The court
held the violence was foreseeable and the jury could infer a causal connection. 280 Kan.
at 548-49.

Turning to the facts here, it is immediately apparent the posture is different. In
Berry's case, the underlying felony is drug possession (not sale) and Berry was the only
participant. But the time and distance factors still support conviction. The time factor is
satisfied because Berry had the cocaine in his possession when the accident happened.
The distance factor is satisfied because the accident and possession occurred at the same
location. The causal connection factor is also clear because it is foreseeable that a person
possessing more than 11 grams of cocaine would attempt to flee from law enforcement
officers. See, e.g., State v. Anderson, 281 Kan. 896, 899, 136 P.3d 406 (2006) (Defendant
attempted to flee from police on foot before arrest and tried to discard baggies of drugs
near a dumpster and hide others in his shoe.); State v. Le, 260 Kan. 845, 845-46, 926 P.2d
638 (1996) (Defendant attempted to flee a traffic stop and was later found in possession
of marijuana.). To be sure, there is foreseeable danger when engaging in a high-speed
motor vehicle chase with law enforcement officers. See, e.g., State v. Johns, 237 Kan.
402, 403, 699 P.2d 538 (1985) (Fatality collision resulted from defendants attempting to
elude police after committing an armed robbery.); see also Sykes v. United States, No. 09-
11311, 2011 WL 2224437, at *7 (U.S. 2011) (Risk of violence and physical injury are
inherent in vehicle flight.).

Put simply, it belies common sense to argue Berry's decision to flee the traffic stop
was limited to just one of his crimes and not the others. There is no evidence to
reasonably determine Berry's flight was due to the driver's license violation to the
exclusion of the more serious crimes involved here. We find it reasonable for a jury to
conclude Berry fled because of all his crimes: the suspended license, illegal possession of
a firearm, and possession of cocaine. And considering his attempts to discard and hide the
cocaine after the accident and his statement to Mendoza that he was a drug dealer, a
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rational factfinder, based on all the evidence viewed in a light most favorable to the
prosecution, could have concluded that Berry fled the deputy and initiated a dangerous
high-speed car chase specifically to avoid being caught with a substantial quantity of
cocaine. We find the evidence sufficient to support the causal connection required for the
felony-murder conviction.

LESSER INCLUDED OFFENSES FOR FELONY MURDER

Berry next argues he was entitled to instructions on the lesser included offenses of
second-degree reckless murder, involuntary manslaughter, and vehicular homicide. He
concedes the evidence of the underlying felony (possession of cocaine) is strong, but
asserts he still was entitled to the lesser included offense instructions because the jury
could have found no causal connection between the felony and the killing. The State
responds that under the applicable test used in determining whether lesser included
offense instructions are required in a felony-murder case, the evidence of the felony must
be weak, inconclusive, or conflicting to justify giving those instructions. The State argues
the evidence of the felony is strong. The district court overruled Berry's request.

Standard of Review

Our initial inquiry is whether the court-made felony-murder instruction rule
violates K.S.A. 22-3414(3). Interpretation of a statute is a question of law, and the
standard of review is unlimited. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275
(2009).

Discussion

K.S.A. 22-3414(3) directs trial courts to issue lesser included offense instructions
"where there is some evidence which would reasonably justify a conviction of some
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lesser included crime." Under that statute, the analysis focuses on the evidence
supporting the lesser offense, and evidence of the higher offense is considered only in
determining whether that evidence would allow a jury to reasonably convict of a lesser
included offense. We have held in nonfelony-murder cases that the statute triggers lesser
included offense instructions upon the request of the defendant, if the jury could
reasonably convict the defendant of the lesser included offense based on the evidence
presented. State v. Houston, 289 Kan. 252, 273-74, 213 P.3d 728 (2009).

Notably, K.S.A. 22-3414 does not exclude felony murder cases from its jury
instruction requirements. And despite the statute's provisions, felony-murder cases have
not followed the statutory model. Instead, these cases have been analyzed under a court-
made rule, commonly referred to as the felony-murder instruction rule. See State v.
Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (holding the statute governing lesser
included offense instructions does not apply to felony murder); State v. Jones, 287 Kan.
547, 558, 198 P.3d 756 (2008) (Johnson, J., dissenting).

Under the felony-murder instruction rule, lesser included offense instructions have
been required only when evidence of the underlying felony is weak, inconclusive, or
conflicting. State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 (2009). To determine if
the evidence is strong or weak, appellate courts have considered whether a reasonable
trier of fact could determine the felony was committed beyond a reasonable doubt. If so,
the evidence of the felony is not deemed weak or inconclusive. State v. Dixon, 289 Kan.
46, 63, 209 P.3d 675 (2009). But if evidence of the underlying felony is weak, the court
has examined whether enough evidence exists to support a conviction for a lesser
included offense. Jones, 287 Kan. at 557.

The court-made felony-murder instruction rule has its detractors. See Jones, 287
Kan. at 558 (Johnson, J., concurring) ("The felony-murder [instruction] rule turns the
[ordinary nonfelony-murder] analysis on its head by focusing on the evidentiary support
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for the charged crime, rather than looking at the evidence to support the lesser included
crime."); Note, Felony Murder in Kansas—The Prosecutor's New Device: State v.
Goodseal, 26 Kan. L. Rev. 145, 155 (1977).

Acknowledging this criticism, as well as the clarity provided by K.S.A. 22-
3414(3), we take the opportunity presented by Berry's arguments to revisit this court-
made rule. At its conclusion, our review shows the prior analysis leading to the felony-
murder instruction rule is flawed. We find that lesser included offense instructions in
felony-murder cases must be issued as directed by the statute and the case law applying
its provisions. To explain our reasoning, we explore the early case law leading to the
emergence of the current felony-murder instruction rule. We next apply our conclusion to
Berry's case and then address how other cases still pending or not yet final are affected by
our holding.

(1) Early case law

Since 1868, trial courts have been statutorily required in all criminal cases to
instruct juries on "all matters of law which are necessary for their information." G.S.
1868, ch. 82, § 236. This statute was held to require instructions on lesser offenses if even
"slight evidence" was produced to support a conviction of the lesser offense. State v.
Woods, 105 Kan. 554, 558, 185 P. 21 (1919) (citing State v. Clark, 69 Kan. 576, 77 P.
287 [1904]). This statutory rule—as well as our courts—treated felony murder the same
as other offenses, even though the courts discerned two categories of felony-murder
cases.

In the first category, the evidence was undisputed that a homicide occurred during
commission of a felony, but the defendant typically claimed innocence of all charges.
Under these circumstances, the court reasoned lesser included offense instructions were
not required because the defendant was either guilty of both the felony and the murder, or
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innocent. See State v. Roselli, 109 Kan. 33, 40, 198 P. 195 (1921) (Defendant and a
companion killed a merchant while robbing a Kansas store. Lesser included instructions
to felony murder were not required because the defendant claimed he was in Missouri
and not present at the robbery.).

The second category was more varied because the defendant typically admitted
guilt for some offense but argued that misconduct did not amount to felony murder. For
example, in State v. Severns, 158 Kan. 453, 148 P.2d 488 (1944), the defendant was
convicted of felony murder for the death of an 8-year-old girl. The defendant admitted he
committed a physical assault but argued he was entitled to a first-degree manslaughter
charge because he claimed he was punishing the child for lying and did not intend to kill
her. The Severns court held that under this defense theory, the jury could have concluded
the defendant did not intend the child's death and the crime perpetrated was a
misdemeanor. As such, the defendant was entitled to instructions on all lesser degrees of
homicide. 158 Kan. at 458-59.

Notably, the Severns court found the weight of the evidence irrelevant, stating the
"fact that the court may deem the evidence supporting a lesser degree to be weak and
inconclusive does not warrant it in refusing the instruction, for the weight of the evidence
is for the jury." 158 Kan. at 458; see also State v. Bradford, 219 Kan. 336, 342-44, 548
P.2d 812 (1976) (Second-degree murder instruction was proper in a felony-murder case
because the jury could have concluded defendant did not commit robbery when evidence
was introduced that the deceased had a large sum of money and a pad of paper when he
was killed and defendant was found later that morning with only $5 and the pad of
paper.).

The first case in which this court found lesser included offense instructions were
not required despite some evidence supporting lesser charges was State v. Germany, 173
Kan. 214, 245 P.2d 981 (1952). Germany is striking because it recites no case law or
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statutory authority for its holding. It simply recites the facts from the record and then
declares no trial court error. In that case, the defendant was convicted of felony murder
for a robbery and killing and sentenced to death. An eyewitness testified Germany
approached the victim and a witness while they sat in a parked car and then demanded the
victim get out and hand over his wallet. When the victim complied, Germany asked
instead for the car keys. The surviving witness testified she heard the keys fall to the
ground and saw Germany raise his gun and shoot the victim. The defendant's confession
was admitted at trial. In it, he conceded he approached the car, opened the front door, and
said, "This is a hold up." 173 Kan. at 222. Then, he said, he asked for the wallet and keys
but did not take the wallet. The wallet was never found.

Germany argued on appeal that he was entitled to instructions on second-degree
murder and manslaughter because he testified at trial that he did not know the gun was
cocked, the whole incident was a Halloween prank, and there was no evidence he
intended to commit robbery since he asked for the car keys instead of taking the wallet.
The State objected, arguing it was in the defendant's best interest not to issue lesser
included offense instructions because the defendant would be acquitted if the State did
not prove the robbery. The district court agreed but then commented that the evidence
was so strong against the defendant that the jury could only conclude the killing was
committed during a robbery. On appeal, this court lumped together all the trial errors
alleged, did not analyze them individually, and stated only that "no error was committed
in any manner of which the appellant now complains." 173 Kan. at 225-26.

Undoubtedly, the evidence in Germany challenging the robbery element was
implausible and contradicted by the defendant's own testimony, but this court's simplistic
decision departed without explanation from the Severn court's analysis that the weight of
the evidence is a jury consideration. More oddly, this court would later characterize
Germany in a subsequent decision as a case in which the evidence at trial excluded the
theory of guilt on any lesser degree of crime. State v. Hoy, 199 Kan. 340, 343, 430 P.2d
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275 (1967). But it would not be until 20 years after Germany that this court would again
weigh evidence to find the giving of lesser included offense instructions unnecessary and
produce the felony-murder instruction rule in its current form.

(2) Emergence of the current felony-murder instruction rule

The decision that followed 2 decades after Germany was State v. Masqua, 210
Kan. 419, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973). In that case, the court
again found lesser included offense instructions were unnecessary due to the weight of
evidence supporting the underlying felony. In doing so, it provided a more detailed
analysis for its outcome.

In Masqua, the defendant was convicted of felony murder for killing the victim
while committing rape. Masqua presented two defense theories. First, he argued he did
not do it. Second, he argued that even if he did it, he was too intoxicated to be culpable.
The defendant's statements to police that he was drinking beer that evening were the only
evidence of intoxication admitted at trial. There was no evidence as to the degree of
intoxication.

But the Masqua court held that since the defendant did not testify, his admissions
to police regarding intoxication were "self-serving" and not "so cogent as to require the
giving of the instruction requested." 210 Kan. at 425. It further held that issuing lesser
included offense instructions would force the jury to speculate on a degree of homicide
"not in the case upon any theory." 210 Kan. at 425. The lack of evidence of intoxication
and a determination that there was no evidence supporting lesser included offense
instructions would have been sufficient under then-existing case law to find lesser
included offense instructions were not required, but the Masqua court went further. It
stated:

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"More compelling, however, is the character of the charges against the appellant.
The state's theory was that [defendant] had committed a murder while perpetrating a
felony (forcible rape). Homicide while committing a felony is the statutory equivalent to
the deliberation and premeditation essential to murder in the first degree. It follows that if
the appellant was present at the rape, the mere participation in that felony would supply
the elements of deliberation and premeditation, both of which must be absent from
second degree murder and manslaughter. Either the rape was perpetrated by the
appellant and he necessarily is responsible for the murder, or he was not present at the
rape where the killing occurred and not guilty of any degree of homicide. [Citations
omitted.]" (Emphasis added.) 210 Kan. at 425.

This analysis made two important changes to the case law preceding it. First, it
hinted that second-degree murder and manslaughter were not lesser included offenses of
felony murder by noting felony murder requires deliberation and premeditation. Second,
the Masqua court grafted the "guilty of both or innocent of all" analysis from the older
cases in which a defendant claimed innocence onto a case where the defendant admitted
misconduct but argued he was not culpable because he was intoxicated. Since the court
had already concluded this theory was not supported by the record, this holding was
unnecessary. Two years after Masqua, this court relied on it and Germany to explicitly
hold that the rule for lesser included offenses in felony-murder cases was an exception to
the general rule applied in all other criminal cases. State v. Reed, 214 Kan. 562, 564, 520
P.2d 1314 (1974).

In Reed, the defendant was convicted of felony murder for the robbery and killing
of a store clerk. Reed and an accomplice robbed the store at gunpoint. They shot the clerk
when they discovered the register contained little money. Both defendants were
apprehended immediately after leaving the store. They were tried together, and the facts
were outlined in the codefendant's appeal, State v. Osbey, 213 Kan. 564, 517 P.2d 141
(1973). Reed argued he was entitled to lesser included offense instructions, but the court
held the instructions were not required. In reaching this holding, the court did not
19
examine any facts or trial theories. Instead, the Reed court simply began by stating that
lesser included offense instructions were only required if there was evidence of
circumstances allowing for the reasonable conviction of the lesser included offense. If the
court had stopped there, no change in direction or confusion with previous analysis would
have been signaled. But it then stated:

"In the past this court has held that in a murder committed during the commission
of a felony the usual rule requiring instructions on lesser included offenses does not
apply. [Citations omitted.] If a murder is committed while engaged in a felony the
felonious conduct itself is held tantamount to the elements of deliberation and
premeditation which are otherwise required for first degree murder. [Citations omitted.]
"Therefore, to support a conviction for felony murder all that is required is to
prove that a felony was being committed which was inherently dangerous to human life,
and that the homicide was a direct result of the commission of that felony. [Citation
omitted.] If such proof is produced the only possible conviction can be that of first degree
murder under the felony murder rule." (Emphasis added.) 214 Kan. at 564.

This analysis—that felony murder is the only crime that could be established if the
State proves the murder was committed during a felony—strongly suggested there should
be no lesser included offenses to felony murder. And in Bradford, 219 Kan. 336, 341-42,
the defendant argued that Reed established that principle. But this court disagreed,
changing the evaluation process again.

In Bradford, the defendant and a friend were drinking and walking around
Manhattan, Kansas. Bradford said something to his friend about robbing someone, and
the two separated. The friend heard Bradford demand someone's wallet, and the victim
indicated he did not have one. The friend returned to the scene, and the victim attempted
to flee. Both Bradford and the friend hit the victim, knocking him down. After the victim
lost consciousness, Bradford said they should kill him since he was almost dead.
Bradford repeatedly struck the victim in the head, killing him. Then Bradford searched
20
his pockets and removed a pad of paper, which he still possessed when arrested. Bradford
offered evidence that the victim had a lot of money with him before he died, but Bradford
only took the paper. As such, he argued the evidence of the robbery was disputed.
Bradford also contended that a second-degree murder instruction was improper because it
was not a lesser included offense of felony murder, citing Reed.

The Bradford court began by noting the general rule for lesser included offenses
set out by statute. See 219 Kan. at 341. It then stated that Germany and Masqua
established an exception for felony-murder cases. And after quoting Masqua at length,
the Bradford court concluded the evidence of the felony was uncontroverted in Masqua
and Reed and, in those cases, the defendant was either guilty of felony murder or
innocent. The Bradford court concluded Masqua and Reed were distinguishable because
there was conflicting evidence as to whether the robbery occurred in Bradford. The
Bradford court then adopted a rule more similar to that applied in the earlier cases,
holding:

"Ordinarily, in a felony murder case, where the evidence of the commission of
the felony is clear and uncontroverted, no instruction on lesser degrees of homicide
should be given. But where, as here, there is conflicting evidence as to the commission of
the felony, and where the evidence will support a conviction of a lesser degree of
homicide, instructions on appropriate lesser degrees should be given." 219 Kan. at 343.

Before concluding that the instructions were proper, the Bradford court went on to
hold:

"While we agree that in a felony murder case no instructions on lesser degrees of
homicide should be given where all of the evidence demonstrates that the homicide was
committed during the commission of a felony (40 Am. Jur. 2d, Homicide, § 534), we
hold that the rule is otherwise where, as here, evidence of the commission of the felony is
disputed or unclear, where the evidence supports instructions on lesser degrees, and
21
where different inferences and conclusions might be drawn by the trier of fact as to which
degree of homicide, if any, was committed. State v. Wilson, 182 Or. 681, 684, 695, 189
P.2d 403 [1948]." (Emphasis added.) 219 Kan. at 344.

This reasoning effectively rescinded the Reed court's analysis suggesting there
were no lesser included offenses to felony murder. Instead, the Bradford court focused on
the evidence and defense theories supporting the lesser homicide. It did not hold, as we
have more recently, that the sole consideration should be evidence of the felony—that
emphasis emerged in State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), and the focus
again shifted.

In Rueckert, the defendant was convicted of felony murder for the shooting and
aggravated robbery of a motorist. Three witnesses and the defendant testified. Rueckert's
accomplice claimed Rueckert hit the victim on the head with a jack post and took the
victim's wallet. Two other witnesses testified that Rueckert confessed to hitting the victim
and taking his money. Rueckert claimed that because he was intoxicated, he did not
remember whether he struck and robbed the motorist. Rueckert then argued he was
entitled to instructions on the lesser degrees of homicide because the aggravated robbery
evidence was weak.

The Rueckert court cited Bradford at length. It specifically referenced the
paragraph from Bradford quoted above, which held lesser included offense instructions
are required when evidence of the commission of the felony is disputed or unclear, the
evidence supports lesser instructions, and when the trier of fact could draw different
inferences or conclusions from the evidence. 221 Kan. at 732. But after acknowledging
the Bradford analysis was sound, the Rueckert court curiously concluded that lesser
included offense instructions were not required because "the undisputed evidence was
sufficient to convince a reasonable mind that a felony had been committed; therefore,
instructions on lesser degrees of homicide were not warranted." 221 Kan. at 732. The
22
court then examined the evidence supporting the aggravated robbery and discounted the
defendant's voluntary intoxication defense because aggravated robbery is not a specific
intent crime. 221 Kan. at 732-33. As such, the court concluded Rueckert either
committed robbery and murder or he was innocent.

This analysis signaled a return to the distinct categories made decades earlier by
the court. But given its expressed affirmation of the Bradford rule, it seems unlikely the
Rueckert court really intended to create a new standard, though Rueckert was the
precursor for the current felony-murder instruction rule. That is seen by this court's
citation to Rueckert in State v. Sullivan & Sullivan, 224 Kan. 110, 121, 578 P.2d 1108
(1978), for establishing the principle that lesser included offense instructions are only
required if the evidence of the underlying felony is weak or inconclusive.

In Sullivan, the defendant was convicted of felony murder in a joint trial with his
accomplice, James Sullivan. Three people testified: a witness, John, and James. The
witness testified that the night before the homicide James and John planned to rob Randy
Moore's home because Moore had taken some of John's possessions. The witness also
testified John told him he had to shoot the victim because the victim recognized him. For
his part, John testified he went to Moore's house to retrieve property Moore had taken
and thought Moore was not home. John had armed himself, he said, because he was
afraid of Moore's vicious attack dog. John waited in the yard, realized Moore was home,
and was about to leave when he heard someone say they were going to let the dog out.
John said he did not see anyone on the porch and shot at the advancing dog to defend
himself. James' confession conflicted with John's story. James stated they went with the
intention of burglarizing the home and the shooting occurred before the dog advanced.
John's trial theory was that the homicide was unintentional and he was not guilty of
attempted burglary because they had not entered the home. As such, he argued the only
crime committed was trespass—a misdemeanor not subject to the felony-murder statute.
224 Kan. at 120-21.
23

The Sullivan court began by citing Bradford as holding that lesser included
offense instructions are required for felony murder unless no possible view of the facts
justified another verdict. 224 Kan. at 121 (citing 41 C.J.S., Homicide § 392c). The court
held that the felony would have to be attempted burglary because the defendant had not
entered the home. The court then reasoned that to deny the lesser included offense
instructions the trial court had to have concluded as a matter of law that the evidence
established the defendants committed attempted burglary and no other conclusion was
possible. 224 Kan. at 121. Citing Rueckert and Bradford, this court found the trial
evidence of the felony was not so compelling that another verdict was impossible and the
trial court erred in refusing the lesser included offense instructions. 224 Kan. at 122.

Again, this analysis examined both the evidence and the defendant's trial theory
supporting the lesser included offenses in order for the court to reach its outcome. But the
cases immediately following Sullivan tend to be conclusory and cite the "weak and
inconclusive" rule to support a holding that the evidence of the felony was strong. See
State v. Strauch, 239 Kan. 203, 218-19, 718 P.2d 613 (1986); State v. Rider, Edens &
Lemons, 229 Kan. 394, 399-400, 625 P.2d 425 (1981).

Over time, the felony-murder instruction analysis became solely focused on the
evidence supporting the felony, and at times the reasoning became circular. See State v.
Hobbs, 248 Kan. 342, 348, 807 P.2d 120 (1991) (finding the evidence undisputed and not
weak or inconclusive considering it "convinced twelve reasonable jurors that an
aggravated robbery had been committed and a death resulted"). Our review of the cases
that followed did not uncover any opinion explicitly altering the more rigorous analysis
of the cases in the 1970s that led to the current rule. But it seems that once the
abbreviated language of the rule was established in the 1970s, this court's analysis
became less rigorous because it was no longer required to do more under the reasoning so
simply stated in Sullivan.
24

Given this less than precise development for what has now become our felony-
murder instruction rule, we hold it must be overruled because it unnecessarily misdirects
a district court's analysis, especially given the express language in K.S.A. 22-3414(3) that
applies to all offenses without distinguishing felony murder. We consider next what
analysis should be used.

(3) Lesser included offense analysis should apply to felony-murder cases

As mentioned above, K.S.A. 22-3414(3) directs courts as to how they must decide
requests for lesser included instructions from criminal defendants. Lesser included
offense instructions must be issued if "there is some evidence which would reasonably
justify a conviction of some lesser included crime." K.S.A. 22-3414(3). It makes no
exception for the judicially created felony-murder instruction rule and does not require
there to be conflicting evidence as to the commission of the felony before the statute is
applied.

Accordingly, and after thoroughly reviewing the case law developed since
Germany, we find lesser included offense instructions should follow the statutory
mandate so that instructions are issued if there is some evidence that would reasonably
justify the conviction of the lesser included crime. In short, we would apply K.S.A. 22-
3414(3) as written to felony-murder cases. Cf. State v. Gunby, 282 Kan. 39, 57, 144 P.3d
647 (2006) (requiring all other crimes and civil wrongs evidence to be governed by
K.S.A. 60-455 and ending past practices of permitting admission of such evidence
independent of the statute). We disapprove any language to the contrary in our previous
opinions.

In Berry's case, and using the statutory viewpoint directed by K.S.A. 22-3414(3),
we find the evidence could reasonably justify a conviction for lesser included crimes.
25
Indeed, the evidence is undisputed that Berry fled from the traffic stop and recklessly
drove down city streets at an unconscionably high rate of speed. His flight caused an
automobile accident that took someone's life. Such evidence could support a conviction
for second-degree reckless murder. See K.S.A. 21-3402(b) (unintentionally killing a
person recklessly under circumstances manifesting extreme indifference to the value of
human life). Also, the evidence could justify a conviction for involuntary manslaughter.
See K.S.A. 2004 Supp. 21-3404(a) (unintentionally killing a person recklessly). And the
evidence could support a conviction of vehicular homicide. See K.S.A. 21-3405
(unintentionally killing a person while operating an automobile in a manner that created
an unreasonable risk of injury to the person of another and constituted a material
deviation from the standard of care a reasonable person would observe under the same
circumstances.). As such, the failure to issue the lesser included offense instructions
amounts to reversible error when following the statutory directive of K.S.A. 22-3414(3).
We reverse Berry's felony-murder conviction based on the above analysis and order a
new trial on that charge.

Finally, we hold that the decision announced in this case is to have application in
all pending felony-murder cases. This court previously has noted that a new rule for the
conduct of criminal prosecutions is to be applied to all cases, state or federal, pending on
direct review or not yet final. Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004)
(adopting rule set out in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S. Ct. 708, 93 L. Ed.
2d 649 [1987]). A conviction is generally not final until: (1) the judgment of conviction is
rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing
or final review has passed. State v. Boggs, 287 Kan. 298, 305-06, 197 P.3d 441 (2008)
(holding new rule in criminal prosecutions is applied to cases pending on direct review
but not final); see Gaudina, 278 Kan. at 105-06; State v. Heath, 222 Kan. 50, 54, 563
P.2d 418 (1977).

26
Our ruling in Berry's appeal renders moot the remaining issues he raises, but we
elect to discuss the arguments relating to Berry's request for an additional causation
instruction and the prosecutor's closing arguments. We do so in the interest of judicial
economy and because these questions may arise again on remand.

CAUSATION INSTRUCTION FOR FELONY MURDER

At trial, Berry argued there should be an additional jury instruction regarding the
causal relationship between the murder and the underlying possession of cocaine felony.
But Berry's trial counsel did not offer alternative language. He simply argued that a
causal connection between the commission of the crime and the death required more
detailed instruction rather than simply establishing that the two events occurred at the
same time. The district court denied the request. It followed PIK Crim. 3d 56.02, stating:

"To establish [the felony-murder] charge, each of the following claims must be proved:

"1. That the defendant killed Vicki K. Brown;
"2. That such killing was done while in the commission of possession of cocaine with
intent to sell or possession of cocaine
"3. That this act occurred on or about the 25th day of November, 2004, in Sedgwick
County, Kansas." (Emphasis added.)

On appeal, Berry argues additional instructions would have better explained
causation to the jury. He also argues additional instruction would have clarified the
prosecutor's alleged mischaracterization of the elements of the crimes alleged, which is
discussed below. But Berry does not articulate in his appeal brief what instruction should
have been given, arguing simply that something else should have been done.

Standard of Review

27
When the trial court refuses to give a requested instruction, an appellate court
views the evidence in a light most favorable to the party requesting the instruction. A
defendant is entitled to an instruction on his or her defense theory, even if the evidence is
slight and only supported by the defendant's own testimony. But appellate courts do not
consider the requested instruction in isolation. It is considered in light of all the
instructions. The instructions are not reversible error, even if they are in some way
erroneous, if they properly and fairly state the law as applied to the facts of the case and
the jury could not reasonably be misled by them. Jackson, 280 Kan. at 549-50. We will
use this standard of review, but we note Berry did not actually request a specific
alternative instruction.

Discussion

This court has previously approved the causation element stated in PIK Crim. 3d
56.02, finding this instruction requires that the death is perpetrated by the defendant or
someone else during the commission of the felony. Jackson, 280 Kan. at 550 (citing
Beach, 275 Kan. at 625, and State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 [2000]). In
Jackson, the second requirement in the instructions differed slightly from the one issued
here. It required the State to prove "'[t]hat such killing was done while in the commission
of or attempting to commit sale of cocaine.'" 280 Kan. at 551. The attempt language was
not included in the instruction issued at Berry's trial.

The Jackson court focused on the commission requirement, concluding that the
claim of felony murder would not have been satisfied if the jury had found the drug
transaction was complete or the defendant had abandoned it before the killing occurred.
The court found the instructions would have required the jury to acquit in those
circumstances. 280 Kan. at 551. We recently affirmed this holding in State v. Ransom,
288 Kan. 697, 713, 207 P.3d 208 (2009) (PIK Crim. 3d 56.02 sufficiently incorporates
28
the causation requirement). The same analysis applies here. As such, the trial court did
not err in refusing to create and issue an additional instruction on causation.

PROSECUTORIAL MISCONDUCT

Berry also argues the prosecutor committed misconduct during closing arguments
by omitting the causation requirement when describing the elements of felony murder.

Standard of Review

This court employs a two-step analysis for determining whether a prosecutor
committed misconduct. First, the court must determine whether the prosecutor's
statements were outside the wide latitude for language and manner allowed when
discussing the evidence. Second, it must determine whether the comments constitute
plain error, i.e., the statements were so gross and flagrant that they prejudiced the jury
against the defendant and denied the defendant a fair trial. State v. Scott, 286 Kan. 54, 77,
183 P.3d 801(2008) (citing State v. Tosh, 278 Kan. 83, Syl. ¶ 1, 91 P.3d 1204 [2004]).

Three factors must be considered under the second step: (1) whether the
misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the
remarks demonstrate the prosecutor harbored ill will; and (3) whether the evidence
against the defendant is of such a direct and overwhelming nature that the misconduct is
unlikely to have had much weight with the jurors. Scott, 286 Kan. at 78. None of these
factors is individually controlling. Before the third factor can override the other two, it
must satisfy the harmlessness test from both K.S.A. 60-261 and Chapman v. California,
386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). 286 Kan. at 79.

Discussion

29
The State began its closing arguments by reviewing the elements required to
convict on each charge. The prosecutor stated:

"I'm going to go through these elements. The jury instructions the judge gives you, that's
the law. I'm paraphrasing, obviously, trying to make this readable. So if there's anything
that I put on this presentation that is different than the jury instructions, the jury
instructions are the law because that's [the judge's] province."

Regarding felony murder, the prosecutor stated the State must prove Berry killed
the victim and that the killing occurred while he possessed cocaine. Specifically, the
prosecutor stated:

"[W]hen you have the crime of felony murder, what we have to show is that the
defendant killed Vicki Brown. It doesn't say intentionally. We don't have to show he
intentionally killed her. It doesn't say premeditated. We don't have to show that he acted
with premeditation. . . . The only element that you'll see on felony murder is the
defendant killed Vicki Brown. That's it on that one, not intentionally, not with
premeditation. Doesn't matter if it's an accident. Your question is did he kill her.
"Continuing on that, ask yourself this: Did his actions cause her death? If yes,
then he killed her. Now, the killing—the second part of it is that the killing has to be done
while possessing cocaine or possessing cocaine with intent to sell. Obviously if you
possess cocaine with intent to sell you are possessing cocaine, but it's—so essentially
when you're looking at felony murder you have two decisions: one, did he kill her; two,
was he possessing cocaine at the time. If you answer yes to those, yes, his actions killed
her, yes, he was possessing cocaine at the time whether it be in his pocket or in the car,
then he's guilty of felony murder." (Emphasis added.)

At the conclusion of rebuttal argument, the prosecutor again stated the jury must
find Berry caused the victim's death and possessed cocaine at the time it occurred. He
argued:

30
"Ladies and gentleman, when we went through voir dire we asked about following law in
the case and we asked about following the instructions. Instructions on felony murder are
very clear. I'm asking that you not add to them. Did he possess—did he cause her death?
Was he possessing cocaine at the time? If those two factors are there then he is guilty of
murder." (Emphasis added.)

Berry contends these statements fail to instruct the jury on the causal connection
required to convict for felony murder. And while it may seem minor, there is a distinction
between the language approved for the jury instructions—a killing done while in the
commission of possessing cocaine—and the prosecutor's comment that the killing
occurred while possessing cocaine. As discussed above, the "in the commission of"
language is critical because the jury's determination that there is not a superseding event
is inferred from this finding. Jackson, 280 Kan. at 550 (stating "'"if the jury found that the
defendant or another was responsible for the death in the commission of the felony, the
jury by definition found that no extraordinary intervening cause existed that was the sole
cause of the death"'"). As such, the State's closing arguments failed to adequately
describe the elements of felony murder. This was error under the first step of the
prosecutorial misconduct analysis.

But we need not address the second step of the prosecutorial misconduct analysis
because the case is being remanded. We presume the State will be more artful in its
closing arguments if this case is retried.

Reversed and remanded.

DAVIS, C.J., not participating.

* * *

JOHNSON, J., concurring: I wholeheartedly agree with the majority's holding on
the issue of lesser included offense instructions in felony-murder cases. Moreover, I
31
acknowledge and applaud the extraordinary effort required to arrive at that decision.
Nevertheless, I must respectfully disagree on the causation instruction issue guidance and
opine that, at the new trial, the jury should be clearly and explicitly informed of the
causation requirement applicable to the felony-murder charge.

In discussing the sufficiency of the evidence to support the felony-murder
conviction, the majority refers to two causation requirements. The first one is said to be a
requirement that the death must have been within the res gestae of the underlying crime
of possessing cocaine (either with or without the intent to sell in this case). That res
gestae requirement is described in temporal terms, i.e., acts done before, during, or after
the happening of the principal occurrence. See State v. Jackson, 280 Kan. 541, 545, 124
P.3d 460 (2005). The second requirement is a direct causal connection between the
felony—here, possession of cocaine—and the homicide. See State v. Beach, 275 Kan.
603, Syl. ¶ 3, 67 P.3d 121 (2003) ("there must be a direct causal connection between the
commission of the felony and the homicide to invoke the felony-murder rule").

Subsequently, however, the majority finds that it was not error for the district
court to refuse to specifically instruct the jury on the legal causation requirement.
Granted, the majority can point to our prior cases in which this court found that the
"while in the commission of" language of the elements instruction in PIK Crim. 3d 56.02
sufficiently informs the jury of the causation requirement. See Jackson, 280 Kan. at 551
(instruction would require jury to acquit if underlying felony had been completed or
abandoned); State v. Ransom, 288 Kan. 697, 713, 207 P.3d 208 (2009) (PIK Crim. 3d
56.02 sufficiently incorporates the causation requirement).

Notwithstanding those prior cases, the temporal phrase, "while in the commission
of," can, at best, only connote the majority's res gestae requirement, i.e., "while in the
commission of" might be construed as synonymous with acts done before, during, or
32
after. In no way could a rational juror logically infer from that elements instruction
language that there must be a direct causal connection between the felony and the killing.

The need for a causation instruction is particularly illustrated by the facts of this
case. The direct and immediate cause of Brown's death was the physical injury she
sustained in the automobile collision. Apparently, that collision was principally caused by
Berry's high-speed, reckless driving. Presumably, Berry was driving at a high rate of
speed because he had been chased by a police vehicle with activated emergency lights
and siren. The high-speed pursuit was precipitated because Berry drove away from a
traffic stop after being asked to produce a driver's license that had been suspended. The
officer made that request after determining that Berry was not committing the traffic
infraction for which the traffic stop was initiated, but before forming a reasonable
suspicion of any other crime and before the detention evolved into a consensual
encounter. See State v. Thompson, 284 Kan. 763, 774-76, 166 P.3d 1015 (2007)
(consensual encounter possible after completion of traffic stop where objectively
reasonable person would feel free to leave). Yet, throughout the res gestae—before the
traffic stop; during the stop, chase, and collision; and after the killing—Berry possessed
cocaine.

The legal requirement of a direct causal connection between the cocaine
possession and the death from automobile collision injuries is not intuitively evident from
the facts in this case. Without being told that they had to connect the cocaine possession
to the chain of causation, the jurors were left with the PIK Crim. 3d 56.02 elements
instruction telling them that all that was needed is a temporal connection, i.e., that the
death must occur while the felony is being committed. The jury had no basis upon which
to reject the prosecutor's erroneous argument that felony murder only requires the
contemporaneous occurrence of the felony and the killing. Accordingly, I would have
found that the trial court's failure to give an instruction on felony murder's direct causal
connection requirement was an independent basis for reversal.
33

BEIER, J., joins in the foregoing concurring opinion.