State v. Kettler

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,272

STATE OF KANSAS,
Appellee,

v.

DRAKE ANDREW KETTLER, JR.,
Appellant.


SYLLABUS BY THE COURT


1.
When a claim is made under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986), the failure to strike a nonminority juror with similar characteristics
as a stricken prospective minority juror is circumstantial, although not conclusive,
evidence of purposeful discrimination in the exercise of peremptory challenges.
Conversely, evidence that a party struck minority and nonminority venire panel members
for the same reason can be evidence that one opposing the strike has failed to carry his or
her burden of demonstrating purposeful discrimination.

2.
When a claim is made under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90
L. Ed. 2d 69 (1986), the possibility that a prospective juror might know one of the State's
witnesses is generally viewed as a nondiscriminatory purpose for exercising a peremptory
challenge.

3.
When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
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prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.

4.
Premeditation, deliberation, and intent may be inferred from the established
circumstances of a case, provided the inferences are reasonable. Factors that give rise to
an inference of premeditation include: (1) the nature of the weapon used; (2) the lack of
provocation; (3) the defendant's conduct before and after the killing; (4) any threats
and/or declarations of the defendant before and during the occurrence; and (5) the dealing
of lethal blows after the deceased was felled and rendered helpless. The analysis of what
inference can be reasonably drawn is not driven by the number of factors present in a
particular case because in some cases one factor alone may be compelling evidence of
premeditation. Use of a deadly weapon by itself, however, is insufficient to establish
premeditation.

5.
When a conspiracy is alleged, the existence of an agreement to commit the
charged crime is one of the elements the State must prove. The existence of an agreement
does not need to be proved directly, however. It is enough if the parties tacitly come to an
understanding in regard to the unlawful purpose, and this may be inferred from
sufficiently significant circumstances.

6.
A prosecutor's statement that premeditation can occur in half a second is contrary
to established caselaw and is prosecutorial misconduct.

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed May 23, 2014.
Affirmed.
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Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, argued the cause and was on the brief for
appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: Drake Andrew Kettler, Jr., appeals his convictions for the
premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy to commit first-
degree murder; and criminal possession of a firearm. Kettler raises four issues: (1) The
State's exercise of peremptory challenges to strike African-Americans from the jury panel
violated the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986); (2) there was insufficient evidence of premeditation on the part of Kettler to
support his conviction for premeditated first-degree murder; (3) there was insufficient
evidence of an agreement between Kettler and his codefendants to support his conviction
for conspiracy to commit first-degree murder; and (4) the prosecutor committed
misconduct during closing argument by misstating the legal definition of "premeditation"
and thereby deprived Kettler of a fair trial.

While we agree with Kettler that the prosecutor misstated the legal definition of
premeditation, we conclude this misstatement did not deprive Kettler of a fair trial. We
do not find merit in any of his other arguments, and we affirm.

FACTS AND PROCEDURAL BACKGROUND

Dyer died from gunshot wounds he suffered on August 10, 2007, in Topeka.
Kettler and three other individuals—Corky A. Williams; Kelvin Phillips, Jr.; and Antonio
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Armstrong—were charged with and convicted of crimes related to the death. All four
defendants appealed, and their individual appeals were argued the same day. For these
related opinions, see State v. Williams, 299 Kan. ___ (No. 103,785, this date decided);
State v. Phillips, 299 Kan. ___ (No. 103,399, this day decided); and State v. Armstrong,
299 Kan. ___ (No. 103,120, this day decided).

The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many
of the same issues. Consequently, our opinions in these cases are largely repetitive. We
have followed this format for the ease of reading only one opinion; the reader will not
need to refer to multiple opinions. For the benefit of anyone who wishes to read all three
opinions, we offer as a guide that Williams asserted the most issues. Kettler and Phillips
repeated some of those issues, making either identical or substantially similar arguments.
Phillips does, however, present an issue not raised by Kettler or Williams—his first issue,
which relates to the procedure for declaring a mistrial. Also, although Williams, Kettler,
and Phillips all raise issues regarding the sufficiency of the evidence and the prosecutor's
misstatement of the definition of "premeditation" during the closing argument, there is
some variance in the analysis because of each individual's role in the shooting of Dyer.
The decision in Armstrong's appeal does not have the same level of overlap, and some
factual details differ because of the variance in the evidence in his separate trial.

Procedural History

The charges against the four defendants were not identical. Kettler, like Phillips
and Williams, was charged with premeditated first-degree murder, in violation of K.S.A.
21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302
and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-
4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and
criminal possession of a firearm.

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Armstrong's case took a different procedural track when, before any of the
defendants' preliminary hearings, he decided to cooperate with the State in exchange for a
favorable plea agreement. Initially, in Armstrong's first contact with investigating law
enforcement officers, he denied any knowledge of or involvement in the shooting. Later,
in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to
the district attorney in which he incriminated himself and implicated the three other
defendants in the premeditated killing of Dyer. Based on this statement and as part of
Armstrong's plea arrangement, the State called Armstrong as a witness at a joint
preliminary hearing related to the charges against Williams, Kettler, and Phillips.
Armstrong reiterated the truthfulness of his sworn statement and testified that he had
joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.

Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed
his mind about cooperating with the State and recanted his statements and testimony,
even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated
that his former defense counsel coerced him into making his prior statements implicating
his friends.

Subsequently, Armstrong's case was joined with the cases of Williams, Kettler,
and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung
jury. After the first trial, the trial court severed Armstrong's case from the others, and his
second trial took place before the three other codefendants again went to trial. Armstrong
testified at his second trial, providing yet another version of how Dyer was shot.
Armstrong was convicted of premeditated first-degree murder and criminal possession of
a firearm, the only charges brought against him.

The State then called Armstrong to testify at the joint second trial of Williams,
Kettler, and Phillips. Armstrong testified that both his sworn statement and his
preliminary hearing testimony against the other defendants were untrue. Armstrong
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explained that he had incriminated his friends because he was led to believe that "my
homeboys, my brothers, was testifying on me, which I found out later was a lie." He also
told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong's
explanation was refuted by Armstrong's attorney, who testified that Armstrong was not
told what to say in his sworn statement.

Although Armstrong was called as a witness for the State at the trial of Williams,
Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong
wore a mask to prevent him from spitting on the law enforcement officers who
transported him to the courtroom or on those in the courtroom. He often cursed, and he
usually either refused to answer questions or was evasive and claimed he could not
remember details. Eventually, on redirect examination, Armstrong became so belligerent
and uncooperative with the prosecutor that he was removed from the courtroom.

As this history suggests, the jury was presented with multiple versions of the
events that led to Dyer's death. In addition to Armstrong's various renditions of what
happened, both Williams and Phillips testified at their second trial and offered slightly
different versions of events. Plus, approximately a month before the second joint trial,
Phillips proffered the substance of his trial testimony in order to obtain some pretrial
evidentiary rulings; the jury would learn that some details included in the proffer differed
from Phillips' trial testimony. Kettler chose not to testify. The jury also heard the
testimony of several individuals who witnessed some portion of the events, investigated
the crimes, or had information about the relationship of Dyer and the defendants. Because
Kettler attacks the sufficiency of the evidence against him, we will discuss the evidence
in some detail.




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Dyer's Conflict with the Defendants

Through the testimony of several witnesses—including Williams and Phillips—
and Armstrong's sworn statement, the jury learned of a dispute between Williams and
Dyer that occurred several weeks before Dyer's death. During this altercation, an
argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams
at gunpoint. Patton testified that after the robbery, Williams issued a challenge by
telephoning and saying, "It's on." Patton's testimony was countered by Williams, who
told the jury he had decided just to stay away from Dyer and Patton. He denied that
Dyer's death had anything to do with the prior encounter.

In turn, Williams' testimony was contradicted by Armstrong's sworn statement and
the preliminary hearing testimony of Armstrong. According to that version of events,
Williams told Armstrong and Kettler about the robbery immediately after it happened.
The three men decided they would be on the lookout for Dyer and his friends. When
Armstrong was asked whether there were any plans made to search for Dyer, Armstrong
replied, "No. Just—just when we—when we saw him, shoot him." Armstrong was asked
if that agreement would apply "to any of the three of you?" He answered, "Any of us . . . .
I'm not going to lie, I wanted to do it because not too—not too long after that, just a
couple of days after that . . . somebody shot . . . [a friend's house] and grazed me on my
arm." Armstrong believed Dyer and Patton were the shooters.

Phillips did not participate in these discussions because he was in jail.
Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking
to Phillips in "code" during a telephone conversation. As it turned out, Phillips was
released from jail the same day as Dyer was shot. According to Armstrong, Phillips
joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer,
they wanted to "[b]low his head off."

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Phillips Spots Dyer; Other Defendants Join Him

Within hours of Phillips' release from jail, he spotted Dyer and Dyer's girlfriend,
Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that
she and Dyer had walked to the liquor store where they ran into some people they knew,
Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While
Shaw shopped, Johnson walked from the liquor store toward Shaw's car. At that point,
Phillips approached Johnson and asked if she was "straight," meaning did she need to buy
any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and
Dyer were already sitting, Phillips told her to take his phone number and to call if she
needed something.

Phillips testified that, after talking to Johnson in front of the liquor store, he talked
to Shaw and asked her whether she wanted to purchase some drugs. Shaw indicated she
had some money at her house, so she would buy drugs if Phillips stopped by. Phillips told
Shaw he would be there within 5 to 10 minutes.

According to Phillips, after Shaw's vehicle pulled away, Phillips called Kettler,
and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop.
They ran down the alley because Phillips was in a hurry to get to Shaw's house so that
another drug dealer would not beat him to the sale. Kettler then called Williams to ask for
a ride to Shaw's house.

Williams also testified that Kettler called him and asked Williams to give Kettler,
Phillips, and Armstrong a ride to Shaw's house. According to Williams, he had been with
Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler,
Armstrong, and another friend and they drove around for about 30 minutes. Then, Kettler
and Williams installed a CD player in Williams' car, while the others were "sitting around
talking." Later, the group went their separate ways until Williams picked up the others to
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take them to Shaw's house. He explained that he was told the men wanted to go to Shaw's
house because she owed Kettler some money and Phillips was going to sell her drugs.

According to Armstrong's sworn statement, Kettler and Williams had picked him
up earlier in the day and the three were still together when Phillips called. Like Williams,
Armstrong stated that Kettler and Williams had installed a CD player in Williams' car,
but Armstrong also indicated that while doing so they had hidden a gun behind the CD
player. Armstrong explained, "Like where the CD player is in Oldsmobile Delta's [sic]
you can take that whole part out, the whole vent part out and you can fit a nice size gun in
there." Armstrong described the hidden gun as a "9 mm Ruger." There was evidence at
the trial suggesting that this gun was later used to shoot Dyer.

Once Williams and Kettler finished installing the CD player, according to
Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then
told the others that Dyer "is at the smoke shop. Get there. And then [Kettler] opened the
vent and pulled a gun out of the vent." Williams drove directly to the alley behind the
store, which Armstrong said was merely 30 seconds or so away from where they were.
Once they were near the store, Armstrong and Kettler jumped out of the car and started
running down the alley. Phillips ran toward them and told them Dyer was on his way to
Shaw's house. They turned and ran back toward Williams' car.

The timing of Armstrong's version of events meshes with Johnson's account. She
saw Phillips and three or four other people running down the alley behind the liquor store
as Shaw drove away.

Events at Shaw's House, According to Johnson and Mun

Once Shaw, Mun, Dyer, and Johnson arrived at Shaw's house, they carried beer
inside and began hanging out. About 5 to 10 minutes after they sat down, Shaw's home
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phone rang. Shaw answered the phone and simply said, "Yeah, yeah," and then passed
the phone to Mun. According to Mun, there was nobody on the other end, so he hung up.
Other evidence suggested that either Phillips or Kettler used Phillips' cell phone to call
Shaw to verify whether Dyer was at her house. Mun indicated that shortly after the phone
call, Shaw asked Dyer if he was J.D., to which Dyer answered, "Yes."

Within a couple minutes of the phone call, there was a knock at Shaw's front door.
Mun walked up to the door and asked, "Who is it?" The person on the other side
responded, and Mun told the others it was "Little Man," which was Kettler's nickname.
When Dyer heard "Little Man," he jumped up and left the room.

Mun looked out the window and did not initially see anyone. When he opened the
door, Mun heard someone coming around the side of the house, asking why he had not
answered more quickly. As the man approached Shaw's front door, Mun recognized him
as Kettler. Phillips and Armstrong came toward the front door from the side of the house,
and the three men ran into the house. Phillips approached Johnson and asked something
like, "[W]here's he at, Bitch?" apparently meaning Dyer. Johnson acted like she did not
know who Phillips was looking for because she "didn't want [Phillips] to do nothing to
[Dyer]." Phillips then turned around and walked out the front door.

Seconds later, Phillips returned to the house. According to Johnson, Kettler and
Armstrong were with him, and all three men had guns when they walked past her and
moved toward the back of the house. Johnson immediately ran out of the house to get
help.

Mun, who remained outside the front door, did not see guns when the group,
which, according to him, now included Williams, walked into the house the second time.
Mun testified that he heard "tussling" and "wrestling" sounds coming from inside Shaw's
house. He stepped inside and saw one of the men pick up a drinking glass and glass
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ashtrays and throw them into the bedroom. Then Mun heard the "pop, pop, pop" sound of
gunshots and watched the four men run out of the house. When Mun looked into the
bedroom, he saw Dyer lying on the floor, unresponsive.

Meanwhile, Johnson ran to a neighbor's house and knocked on the door. When the
neighbor responded, Johnson asked her to call law enforcement. Johnson then heard
gunshots, so she ran back to Shaw's house. As she approached, Johnson saw the same
men run out of Shaw's house, jump into a brown car, and drive away. This car was later
identified as Williams' car.

Johnson went inside Shaw's house and found Dyer lying on the bedroom floor,
bleeding and unresponsive. Dyer had been struck by two bullets, one of which entered
through his arm and pierced his heart. In addition to the bullet wounds, Dyer suffered
head wounds and a bite mark on his left shoulder. An expert opined that Phillips was the
probable biter.

The jury did not hear Shaw's versions of events because she had passed away
before the first trial, and, as we have noted, Kettler chose not to testify. But, just as
Williams, Phillips, and Armstrong provided different versions of what happened before
the men got to Shaw's house, they provided very different accounts of what occurred
once they arrived.

Williams' Version

According to Williams, he drove over to Shaw's house with Kettler, Phillips, and
Armstrong because Shaw owed Kettler money and because Phillips said "he needed to
take care of some business over there," meaning a drug deal. When they pulled up at
Shaw's house, Williams dropped off the other men. He then drove past the house before
turning around and coming back to park. Williams said he was parked about a minute
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when Kettler came out the front door and got into Williams' car. Then Williams heard
gunshots coming from inside Shaw's house. Seconds later, Williams saw Phillips and
Armstrong running out of the house. When they got into the car, Williams noticed "a few
blood spots" on Phillips' shirt. Williams asked, "What's going on?" but they just told him
to "drive off." So Williams drove over to the home of Latoya Austin, Armstrong's
girlfriend.

Williams testified that he did not see a gun, but when they went inside Austin's
house he heard Austin tell Armstrong to "get that out of here," referring to the gun
Armstrong was then holding. Williams saw Armstrong leave the house for a couple
minutes, presumably to get rid of the gun. Then Armstrong started talking about what had
happened at Shaw's house and indicated that Phillips shot Dyer. Phillips and Armstrong
talked about "tussling over the gun" with Dyer. They told Williams that Dyer tried to get
the gun from Phillips and Dyer had hopped on Phillips' back.

Phillips' Version

Phillips' testimony was consistent with Williams', at least in many respects.
According to Phillips, his "whole intention was to go over there [Shaw's house] to bust a
serve," which he explained meant to complete a drug sale. Phillips denied having any
discussion before arriving at Shaw's house about settling a score with Dyer. In fact,
according to Phillips, he did not know about Dyer's robbery of Williams until after Dyer's
death. On the way to Shaw's house, Phillips called Shaw to make sure she and Mun were
there. Phillips testified that he did not see any guns and did not know whether Williams
had hidden a gun in the dashboard of the car.

Phillips said Kettler went up to Shaw's house first, knocked on the door, and
announced that it was "Little Man." Mun, who answered the door, mentioned that Dyer
had run out the back. Phillips indicated he was not sure why Mun told them about Dyer.
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Armstrong then went around the side of the house, and Phillips and Kettler went inside.
After Phillips completed his drug sale, Armstrong entered the house and began asking
where Dyer was because he had not found Dyer behind the house. Next, Armstrong ran
through the house, toward the back rooms, and Johnson stood up and ran out the front
door. Phillips testified that he tried to get Armstrong to leave, but then he heard "some
tussling" and saw Dyer and Armstrong wrestling over a gun. Phillips did not know who
brought the gun to Shaw's house, but he assumed it was Armstrong; he specifically
denied carrying a gun into Shaw's house himself.

Phillips told the jury that he was not going to let Dyer hurt his friend, so he tried to
break up the fight. When his initial efforts did not work, Phillips started hitting Dyer "in
his face area." These efforts did not stop Dyer, so Phillips grabbed an ashtray out of the
living room and hit Dyer over the head several times. Phillips also bit Dyer. During this
time, according to Phillips, Kettler also tried to break up the fight. At some point, Kettler
yelled, "'Come on, let's get out of here. We didn't come over here for this." Kettler then
ran toward the front of the house, and Phillips assumed Kettler left.

As the struggle continued, Dyer dropped the gun. Phillips picked it up, but in the
process the gun went off. Phillips ran into the bedroom, and Dyer jumped on his back.
This caused Phillips to stumble and "[t]wo shots went off." Phillips broke lose from Dyer,
and as Dyer "was falling, I let like two more shots go." Phillips testified that the gun was
still in his hand when he got into Williams' car and he threw it on the back seat. When
asked whether it was his intention to shoot Dyer, Phillips testified, "No, it wasn't. I had
no reason to. I don't believe I would have had a reason. That's not my style."

Armstrong's Versions

Armstrong's sworn statement included some of the same details. There were
significant differences, however, including his explanation of why the four went to
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Shaw's house, which was to "[b]low Dyer's head off." He also stated that he had initially
carried the gun that had been removed from the dash of Williams' car, but, after the men
could not find Dyer in Shaw's backyard, Phillips grabbed the gun from Armstrong and
entered the house. Armstrong, Kettler, and Williams followed. The fight initially
involved Kettler, Phillips, and Dyer, while Williams stood nearby. During the struggle,
Kettler had Dyer briefly subdued, but then Dyer got loose and jumped on Phillips' back.
At that point, Armstrong started hitting Dyer's head with a glass ashtray and Dyer fell.
After Dyer hit the floor, Phillips "backed up and I [Armstrong] started backing up just to
make sure that, you know, . . . wasn't no chance I would get hit by the bullets because I
already knew what was about to happen at that split second and that's when [Phillips] just
started shooting." Phillips "was shooting to kill, but it was like he was kind of shooting
kind of wild . . . like he was just trying to hit him everywhere." After the shots were fired,
Phillips ran out of the house. Armstrong followed him and saw Kettler in the kitchen
doorway with a knife. Armstrong stated that after the struggle moved from the bathroom
to the bedroom, Kettler went to the kitchen. "I guess before he got the knife, [Phillips]
shot [Dyer]."

A transcript of Armstrong's testimony from his own, separate trial was also
admitted into evidence at the trial of Williams, Kettler, and Phillips. This version of
events put yet another spin on the facts. Armstrong indicated that he, Williams, Kettler,
and Phillips went to Shaw's house to collect money that Shaw owed to Kettler. After all
four men went into the house and Shaw paid Kettler, they heard the sound of a curtain
being snatched back and saw Dyer "came out [of] the bathroom with a black gun in one
hand and a silver gun in the other." Dyer said, "[Y]ou-all drop out," meaning everyone
give him their "property." Phillips was able to hit Dyer "so hard that one gun flew out of
his hand and hit the wall so hard that the clip fell out of it." Kettler and Phillips "lunged
after the other gun." After wrestling around and after Armstrong hit Dyer on the head
with an ashtray, Phillips tried to run away, but Dyer ran after Phillips and "grabbed him
by the back of his neck." So Armstrong grabbed Dyer and hit him again three times,
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causing Dyer to drop to the floor. That is when Phillips "came out of nowhere" and
"started shooting" at Dyer. Phillips, Kettler, and Armstrong ran out of the house.

On Armstrong's way out of the house, he saw Williams leaning down to pick up
the first gun that Dyer had dropped. He did not see what happened to the gun after that.
Williams followed Armstrong out of the house, and the four friends drove away in
Williams' car. According to Armstrong, they did not plan to kill Dyer: "We did not go
over there intending to kill him. We didn't have a gun to go over there to kill him with.
He got shot with his own gun."

Other Evidence

In other evidence, jurors heard from some of Shaw's neighbors who described a
car that matched the description of Williams' car as being near Shaw's house at the time
of the shooting. One couple was following Williams' car through the neighborhood. They
reported seeing three men get out of the car and approach Shaw's house; one of the men
walked to the door and the others ran around the side of the house, which made the
couple suspicious. Meanwhile, the driver pulled forward, turned around, and parked. The
description of the driver they provided was consistent with Williams' appearance. After
the shooting, another neighbor saw "three or four" men run out of Shaw's house and get
into a parked car.

The jurors also heard the testimony of Renee Stewart, who testified that Williams
and Kettler came to her house the night Dyer was shot. Based on things that were said,
Stewart concluded Williams had shot someone. She reported that he seemed very
nervous, and he wiped down a 9 mm pistol and some ammunition and asked her to hide
the gun. She later sold the gun for drugs. She also indicated that several days before the
shooting she had given Kettler and Williams a ride and Kettler had left a box of 9 mm
ammunition in the glove box. Law enforcement officers testified they found the
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ammunition as described by Stewart; a few bullets were missing from the box and the
ammunition matched the type and brand of the fired bullets recovered from Dyer's body
and Shaw's house.

After weighing all the evidence, the jury convicted Kettler of premeditated first-
degree murder, conspiracy to commit first-degree murder, and criminal possession of a
firearm. Kettler filed a timely appeal, over which this court has jurisdiction under K.S.A.
22-3601(b)(1) (off-grid crime; maximum sentence of life imprisonment imposed).

BATSON CHALLENGES

Kettler, an African-American, contends that the State's exercise of peremptory
challenges to strike African-Americans from the jury panel violated the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution as analyzed in
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). He focuses on
two prospective jurors, L.S. and R.N., although he notes that at the end of the jury
selection process no African-Americans remained on the jury. Kettler contends that the
State's proffered reasons for striking prospective jurors such as L.S. and R.N. were
pretextual, demonstrating purposeful discrimination, which entitles him to a new trial.

Standards of Review

In Batson, the United States Supreme Court held that the Equal Protection Clause
applies to the State's privilege to strike prospective jurors through peremptory challenges.
When a Batson challenge is asserted, a three-step analysis applies; each step is governed
by its own standard of review. State v. Hill, 290 Kan. 339, 358, 228 P.3d 1027 (2010);
State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 (2006).

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First, the party challenging the strike must make a prima facie showing that the
other party exercised a peremptory challenge on the basis of race. Appellate courts utilize
plenary or unlimited review over this step. Hill, 290 Kan. at 358.

Second, if a prima facie case is established, the burden shifts to the party
exercising the strike to articulate a race-neutral reason for striking the prospective juror.
This reason must be facially valid, but it does not need to be persuasive or plausible. The
reason offered will be deemed race-neutral unless a discriminatory intent is inherent in
the explanation. The opponent of the strike continues to bear the burden of persuasion.
290 Kan. at 358.

Third, the trial court must determine whether the objecting party has carried the
burden of proving purposeful discrimination. This step hinges on credibility
determinations. "[U]sually there is limited evidence on the issue, and the best evidence is
often the demeanor of the party exercising the challenge. As such, it falls within the trial
court's province to decide, and that decision is reviewed under an abuse of discretion
standard. [Citations omitted.]" State v. McCullough, 293 Kan. 970, 992, 270 P.3d 1142
(2012).

Striking of Prospective Jurors and the Trial Court's Rulings

During the jury selection process, Kettler's codefendant Williams raised a Batson
challenge to the State's decision to strike L.S. and R.N. Although Kettler did not
specifically bring separate Batson challenges when the State removed L.S. and R.N., his
defense counsel did join with the renewal of Williams' challenges once the jury was
chosen and there were no African-Americans left on the jury. Kettler's defense counsel
recognized that the defendants had struck two minority prospective jurors from the venire
panel but argued that the State's striking of more minority prospective jurors showed a
"pattern" of eliminating prospective jurors based on race. Again, despite this
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characterization of a "pattern" of discrimination during voir dire, Kettler only focuses on
two panel members in his appellate brief. Perhaps this is because another minority panel
member, R.H., was struck by the State, but Kettler's counsel voiced agreement with the
propriety of that strike, even after Williams' counsel objected. Thus, Kettler had
essentially agreed to the striking of three minority panel members—two by the defense
and one by the State. Consequently, the State was not responsible for striking all
minorities.

Like Kettler, we focus solely on L.S. and R.N. With regard to them, the parties do
not dispute that the defense established a prima facie case that they were struck based on
race. After Williams challenged those strikes, the trial court gave the State the
opportunity to respond.

As to L.S., the State explained it was striking L.S. because she was employed as a
kitchen supervisor at a correctional facility during the time that one of the witnesses for
the prosecution, Stewart, was incarcerated at that facility. The State opined it was
possible that L.S. had contact with Stewart and other witnesses and would recognize
them when they testified, even though L.S. had not recognized their names.

Williams' defense counsel responded to the State's explanation by arguing that
other potential jurors (presumably non-African-Americans) remained on the jury panel
despite having had "law enforcement contact with corrections' personnel." But the State
then pointed out that L.S. was the only potential juror who worked at this particular
correctional facility at the same time that a witness in the case was incarcerated there.
The trial court found that the defendant failed to carry the burden of proving purposeful
discrimination.

As for prospective juror R.N., the race-neutral reason provided by the State was
that R.N. indicated on his jury questionnaire that he had pending unpaid traffic tickets;
19

thus, the State argued that R.N. "had some adverse contact with law enforcement." The
prosecution further noted that it was trying to eliminate younger individuals lacking in
"life experience and/or combination of formal education" and R.N. fit this description.
Williams' defense counsel responded, in part, that the existence of "unpaid traffic
tickets . . . does not necessarily imply any significant law enforcement contact, [it]
implies more inability to pay."

After listening to all the arguments, the trial judge denied the Batson challenge
regarding R.N., concluding, "I don't believe that the defendant has made or met his
burden to show purposeful discrimination based on the fact . . . the State is contending."
In addition, the trial judge—when summarizing the rulings regarding all of the
challenges, including the additional challenge to R.H. made by Williams but not joined
by Kettler—found "there were race-neutral reasons that those individuals were struck and
there was no purposeful discrimination against any of those individuals."

State Proffered Nondiscriminatory Rulings for Strikes

In attacking the trial court's ruling on appeal, Kettler maintains that the decision to
strike L.S. and R.N. shows purposeful discrimination because L.S. and R.N. exhibited
"similar characteristics" to some non-African-American individuals who ultimately
served on the jury. This court has stated that the State's failure to strike a white juror with
similar characteristics as a stricken minority prospective juror is circumstantial, although
not conclusive, evidence of purposeful discrimination. State v. Trotter, 280 Kan. 800,
818, 127 P.3d 972 (2006). Conversely, evidence that the State struck minority and
nonminority panel members for the same reason can be evidence that a defendant has
failed to carry his or her burden of demonstrating purposeful discrimination. See Miller-
El v. Dretke, 545 U.S. 231, 241, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005); State v.
Angelo, 287 Kan. 262, 274, 197 P.3d 337 (2008).

20

Consistent with these authorities, the State pointed out to the trial court that it had
struck nonminority panel members for the same reasons it struck R.N.—youthfulness,
lack of experience, and potentially negative experiences with law enforcement. In
response to this statement, Williams' counsel acknowledged that the defendants had also
exercised peremptory challenges to strike other youthful prospective jurors. This
concession was sufficient to establish youthfulness and lack of experience as a
nondiscriminatory reason for the strike—a reason used by both the State and the
defense—even if it could be disputed that R.N. had negative experiences with law
enforcement. The additional reason of the traffic tickets does not negate the other
nondiscriminatory reasons offered by the State.

Further, even though Kettler contended before the trial court and now on appeal
that there were venire members who had similar characteristics that remained on the jury,
neither Williams' nor Kettler's counsel made a record adequate for us to rule in Kettler's
favor. Kettler did not identify those jurors he felt had similar characteristics. Hence, from
the trial record itself, we are unable to analyze Kettler's argument.

Similarly, on appeal, Kettler does not direct this court to any pages in the record
supporting his "similar characteristics" assertion. See McCullough, 293 Kan. at 999
(appellant's burden to designate a record affirmatively showing error). Appellate courts
"will not independently search the record and guess which specific facts [appellant]
believes support his general allegations." State v. Bryant, 285 Kan. 970, 977, 179 P.3d
1122 (2008); see Rule 6.02(a)(4) (2013 Kan. Ct. R. Annot. 39) ("The court may presume
that a factual statement made without a reference to volume and page number has no
support in the record on appeal."). Because we are unable to determine if there is factual
support for Kettler's position, his arguments regarding the State's decision to strike R.N.
fails.

21

As to the reason given by the State for striking L.S.—that she might know one of
the State's witnesses—other courts have recognized that this is a nondiscriminatory
reason for exercising a peremptory strike. See, e.g., United States v. McKay, 431 F.3d
1085, 1092 (8th Cir. 2005), cert. denied 547 U.S. 1174 (2006). We agree; in fact,
potential knowledge of a witness is a frequent reason for striking prospective jurors.

In summary, although the elimination of all African-Americans from the jury is
very troubling, we note that Kettler's defense counsel recognized that the defense had
struck two other minority prospective jurors from the venire panel. This means that
Kettler has not established that the State purposefully sought to eliminate all minority
members of the panel; we simply do not know whether the State would have exercised
peremptory challenges to remove the two minority prospective jurors who were removed
by the defense. Further, based on the race-neutral reasons articulated by the State for its
strikes, we conclude that the trial court did not abuse its discretion in concluding that
Kettler failed in his ultimate burden to prove purposeful discrimination during the jury
selection process.

SUFFICIENCY OF THE EVIDENCE

Kettler argues that there was insufficient evidence to support his convictions for
premeditated first-degree murder and conspiracy to commit first-degree murder. With
regard to Kettler's murder conviction, he contends the State failed to prove the element of
premeditation. As for conspiracy, Kettler argues the State failed to prove that he entered
into an agreement with his codefendants to kill Dyer.

The standard of review that applies when sufficiency of the evidence is challenged
in a criminal case is well known. After reviewing all the evidence in a light most
favorable to the prosecution, the appellate court must be convinced a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. Appellate courts do not
22

reweigh evidence, resolve evidentiary conflicts, or make witness credibility
determinations. State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).

A. Premeditated First-Degree Murder

We first apply this standard to Kettler's argument that his conviction for
premeditated first-degree murder must be reversed because there was insufficient
evidence of premeditation. As Kettler correctly notes, the State proceeded against him on
an aiding and abetting theory. To establish guilt on the basis of aiding and abetting, the
State had to show that Kettler knowingly associated with the unlawful venture and
participated in such a way as to indicate that he was facilitating the success of the
venture. See K.S.A. 21-3205(1); State v. Green, 280 Kan. 758, 761, 127 P.3d 241, cert.
denied 549 U.S. 913 (2006). As such, even though Kettler did not personally fire the gun
that killed Dyer, the State was required to prove Kettler's intentional participation in the
venture, premeditated first-degree murder, which obviously includes the element of
premeditation.

Premeditation means to have thought the matter over beforehand and does not
necessarily mean an act is planned, contrived, or schemed beforehand; rather,
premeditation indicates a time of reflection or deliberation. State v. Qualls, 297 Kan. 61,
Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan. 603, 632, 102 P.3d 406 (2004);
see PIK Crim. 3d 56.04(b). Further, it is not necessary that there be direct evidence of
either intent or premeditation. Instead, premeditation, deliberation, and intent may be
inferred from the established circumstances of a case, provided the inferences are
reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755 (2008). In other words,
"[i]ntent . . . may be shown by circumstantial evidence, and a person is presumed to
intend all the natural consequences of his acts. [Citation omitted.]" State v. Childers, 222
Kan. 32, 37, 563 P.2d 999 (1977).

23

In considering circumstantial evidence, Kansas caselaw identifies factors to
consider in determining whether the evidence gives rise to an inference of premeditation
that include: "(1) the nature of the weapon used; (2) lack of provocation; (3) the
defendant's conduct before and after the killing; (4) threats and declarations of the
defendant before and during the occurrence; and (5) the dealing of lethal blows after the
deceased was felled and rendered helpless. [Citation omitted.]" Scaife, 286 Kan. at 617-
18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of
what inferences can be reasonably drawn is not driven by the number of factors present in
a particular case because in some cases one factor alone may be compelling evidence of
premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v.
Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third
factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is
insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285
(2011).

Evidence Was Sufficient

A review of the record shows evidence—both direct and circumstantial—of
premeditation. Certainly the strongest evidence of premeditation came from Armstrong's
sworn statement, which establishes an agreement between Williams, Kettler, Armstrong,
and, later, Phillips to kill Dyer in retribution for his robbing Williams at gunpoint. But
there was other evidence of premeditation as well.

Focusing on the first factor traditionally considered as evidence of
premeditation—the nature of the murder weapon—Johnson testified the men entered the
house with guns. Armstrong explained that a gun had been hidden, removed from its
hiding place before the men got to the liquor store, and then taken with them—
specifically, by Phillips—into Shaw's house. Even in Phillips' version of events, he
assumed the murder weapon had been brought into the house by Armstrong. Moreover,
24

during the struggle over the gun, there was evidence that Kettler went to Shaw's kitchen
to retrieve a knife—an alternative, but deadly, weapon.

As for the second factor regarding lack of provocation, there was no evidence that
Dyer did anything on the day of his death to entice Williams, Kettler, Phillips, and
Armstrong to enter the house. Under any version of events other than Armstrong's
testimony at his own trial, the aggressors were Armstrong, Kettler, and/or Phillips, either
individually or together, and Williams aided and abetted their efforts.

Patton provided evidence of the third and fourth factor—the defendants' prior
conduct and prior threats and declarations of the defendants before and/or during the
occurrence. Patton testified that Williams had issued a challenge to him and Dyer. As to
Kettler in particular, there was evidence that he was the one who communicated with
Phillips about the plan. Then, on entering Shaw's house, Phillips got in Johnson's face
"talkin' about, 'Bitch, where is he?'" Johnson apparently viewed this as a threat because
she pretended not to know who Phillips was referring to because she "didn't want
[Phillips] to do nothing to [Dyer]." Turning to Kettler's conduct after the shooting,
Stewart testified about Williams and Kettler coming to her house the night of the
shooting, bringing a 9 mm gun that she believed belonged to Williams, wiping down the
gun and ammunition, and asking her to hide it.

Finally, the fifth factor—the dealing of lethal blows after the deceased was felled
and rendered helpless—also weighs toward a finding of premeditation. In Armstrong's
sworn statement, he indicated he had repeatedly hit Dyer in the head with a glass ashtray,
causing Dyer to fall, and then Phillips fired several shots into Dyer as he was lying on the
bedroom floor. Armstrong stated that Phillips was "shooting to kill." Forensic evidence
confirmed that shots were fired into the floor.

25

Kettler ignores these factors and the circumstantial and direct evidence against
him. Instead, he points to evidence supporting the defense theory that the only reason he
and the others went to Shaw's house was to collect money from Shaw and sell her some
drugs. He also emphasizes Phillips' testimony, where he said: "When [Kettler] seen me
get the gun off the ground, he started yelling, 'Come on, let's get out of here. We didn't
come over here for this. This shit is stupid. Let's get out of here.'" But these statements by
Kettler do not necessarily negate the existence of a premeditated agreement to kill Dyer.
They could indicate that Kettler did not expect Dyer to struggle and put them at risk.

More significantly, however, the jury heard this evidence supporting Kettler's
defense theory, but the jury also heard evidence incriminating Kettler—evidence from
which a rational factfinder could conclude that the killing of Dyer was intentional and
premeditated. In fact, Kettler basically admits that there was evidence of premeditation
(as well as the elements of conspiracy which will be discussed later), but he complains
about the weight the jury gave to that evidence. He contends in his appellate brief that
"[t]he only evidence supporting premeditation, as well as conspiracy and aiding and
abetting, came from Armstrong." More specifically, Kettler contends Armstrong's
statements were not credible. He notes that Armstrong had provided varied accounts of
what happened on the date of the incident; Armstrong had recanted his accusatory
statements against Kettler and the others; and Armstrong displayed uncooperative and
belligerent behavior during his testimony at Kettler's trial.

Kettler's argument is not without some factual support; he is correct that there was
evidence that could have justified a different verdict than that reached by the jury.
Nevertheless, his argument does not have any legal support because to reach the result he
requests, this court would have to make our own determination of credibility and reweigh
the evidence, and these are not tasks an appellate court performs when conducting a
sufficiency review. Instead, an appellate court considers all evidence—even if there is
conflicting evidence or reasons to question its credibility—and does so in the light most
26

favorable to the State. See State v. Raskie, 293 Kan. 906, 920, 269 P.3d 1268 (2012).
Factfinders—in this case the jurors—not appellate judges, make credibility
determinations. Thus, Armstrong's incriminating and accusatory statements are part of
our consideration.

Further, the more incriminating versions of events relayed by Armstrong are
consistent with other direct and circumstantial evidence, including the testimony of
Patton, Johnson, and Mun; the observations of several of Shaw's neighbors; and much of
the evidence gathered in the investigation, including videos from cameras at the liquor
store, phone records, and the nature and location of Dyer's wounds. See Scaife, 286 Kan.
614, Syl. ¶ 3 ("[A] factfinder is permitted to reasonably infer the existence of a material
fact from circumstantial evidence, even though the evidence does not exclude every other
reasonable conclusion or inference."). During the State's closing argument, the prosecutor
spent considerable time detailing the discrepancies between the physical evidence and the
defendants' various versions of how the fight played out.

Thus, the evidence from Armstrong's sworn statement is not so incredible that it
must be disregarded. See State v. Brinklow, 288 Kan. 39, 53-54, 200 P.3d 1225 (2009)
(identifying State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 [1983], as "perhaps the only
case of its kind in this state where the Supreme Court directly weighed the evidence and
assessed the credibility of the prosecutrix," calling Matlock "aberrant," and concluding in
the case before it "inconsistencies in the evidence did not render [the victim's]
testimony . . . so incredible or improbable as to defy belief"); accord State v. Plunkett,
261 Kan. 1024, 1033, 934 P.2d 113 (1997).

In summary, various versions of events were presented to the jury through an
assortment of witnesses and other evidence. In this mix of testimony, there was sufficient
evidence when viewed in the light most favorable to the State that a rational factfinder
27

could have found beyond a reasonable doubt that Kettler and the others premeditated the
killing of Dyer.

B. Conspiracy to Commit First-Degree Murder

Kettler next contends that the State provided insufficient evidence that he entered
into an agreement to commit a murder to support the conspiracy charge. An agreement is
an element of conspiracy, and the jury was instructed that it had to find that Kettler
agreed with others to commit the crime of premeditated first-degree murder. See PIK
Crim. 3d 55.03 (conspiracy).

In order to meet the sufficiency of the evidence standard, there must be evidence
supporting each element of a crime, such as the agreement element of the conspiracy
charge. See K.S.A. 21-3302(a); State v. Northcutt, 290 Kan. 224, 231, 224 P.3d 564
(2010); State v. Webber, 260 Kan. 263, 288, 918 P.2d 609 (1996), cert. denied 519 U.S.
1090 (1997). The existence of an agreement does not need to be proved directly,
however. "[I]t is enough if the parties tacitly come to an understanding in regard to the
unlawful purpose, and this may be inferred from sufficiently significant circumstances.
[Citation omitted.]" State v. Swafford, 257 Kan. 1023, 1040, 897 P.2d 1027 (1995); see
State v. Sharp, 289 Kan. 72, 104-05, 210 P.3d 590 (2009); State v. Davis, 284 Kan. 728,
737-38, 163 P.3d 1224 (2007).

Applying these principles, we conclude the record includes evidence of an
agreement between Williams, Kettler, Phillips, and Armstrong to shoot and kill Dyer.
Armstrong had stated that he had several discussions with Kettler and Williams "about
getting" Dyer. It was agreed that "if you see [Dyer], shoot him." Armstrong also stated
that although nobody explicitly said, "[W]e got to go kill" Dyer, "[W]e all knew what the
goal was when we went over there . . . to kill James Dyer." Additionally, he said that
Phillips joined in this agreement. The State aptly argues that the jury could have inferred
28

through Armstrong's statements, the fact Phillips alerted the others to Dyer's
whereabouts, and the speed with which the defendants acted once Phillips called them
about spotting Dyer, that the foursome had an agreement to kill Dyer.

Kettler does not dispute that Armstrong's statements—his sworn statement and
Armstrong's preliminary hearing testimony—offered proof of an agreement. Instead,
Kettler again argues that other evidence supported his defense theory.

Once again, Kettler attacks the credibility of Armstrong's incriminating and
accusatory statements because of Armstrong's various versions of events and because
Armstrong later recanted his sworn statement. It was the jury, however, that had the duty
to weigh the evidence and determine the credibility of the witnesses. It was not bound to
accept any one witness' version of the facts; and having convicted Kettler, the jury is
presumed to have believed the State's evidence and to have drawn from it all reasonable
inferences favorable to the State. See State v. Aikens, 261 Kan. 346, 392, 932 P.2d 408
(1997), rev'd on other grounds by State v. Warrior, 294 Kan. 484, 277 P.3d 111 (2012);
see also State v. Moody, 223 Kan. 699, 704-05, 576 P.2d 637 (evidence, which stood or
fell on whether jury believed coconspirator who was primary witness against defendant,
was sufficient to support defendant's conviction of conspiracy to commit aggravated
burglary and aggravated robbery), cert. denied 439 U.S. 894 (1978). Further, this court
does not reevaluate credibility a jury has already determined. See State v. Peppers, 294
Kan. 377, 401, 276 P.3d 148 (2012); Raskie, 293 Kan. at 920; State v. Ward, 292 Kan.
541, Syl. ¶ 12, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). It is not the
function of this court to reweigh evidence, resolve evidentiary conflicts, or make witness
credibility determinations. Lowrance, 298 Kan. at 296.

The evidence, when viewed in the light most favorable to the prosecution, was
sufficient for a rational factfinder to find Kettler guilty of conspiracy to commit first-
degree murder.
29

PROSECUTORIAL MISCONDUCT

Next, Kettler contends the prosecutor committed misconduct during closing
argument by misstating the legal definition of "premeditation" and thereby deprived him
of a fair trial. A misstatement of the law during a prosecutor's closing argument can deny
a defendant a fair trial when "the facts are such that the jury could have been confused or
misled by the statement." State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).

Standard of Review

To determine whether a prosecutor committed reversible misconduct, we first
decide if the challenged comment exceeded the wide latitude of language and manner
afforded the prosecutor when discussing the evidence. If the comment was outside these
bounds, we next decide if the comment constitutes reversible error, which requires a
finding that the comment was so prejudicial as to deny the defendant a fair trial. State v.
Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 85, 91
P.3d 1204 (20114).

In analyzing the second step of whether the defendant was denied a fair trial, we
consider three factors: "(1) whether the misconduct was gross and flagrant; (2) whether it
was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors." No one factor is controlling. Bridges, 297 Kan. at 1012; Tosh, 278 Kan.
at 93.

Before the third factor can ever override the first two factors, an appellate court
must be able to say that the State can meet the harmlessness tests of both K.S.A. 60-261
and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386
U.S. 987 (1967). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman,
30

the United States Supreme Court directed that a constitutional error can be deemed
harmless only if "the party benefitting from the error proves beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict." Ward, 292 Kan. 541, Syl. ¶ 6. If the does not violate the United States
Constitution, the harmless error analysis is defined in K.S.A. 60-261, and the test is
whether "there is a reasonable probability that the error did or will affect the outcome of
the trial in light of the entire record." 292 Kan. 541, Syl. ¶ 6.

Even though we have applied this dual harmless error standard, we also have
observed that as a practical matter the result of the harmless error evaluation depends on
the outcome of the constitutional standard. "[B]oth the constitutional and
nonconstitutional error clearly arise from the very same acts and omissions," and the
constitutional standard is more rigorous. Thus, the State necessarily meets the lower
statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. See
Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292
[2013]).

Alleged Misconduct

Here, the alleged prosecutorial misconduct occurred when the prosecutor was
describing the elements of premeditated first-degree murder and stated:

"There are basically three elements to that offense that the State needs to prove to you.
First, that the killing of James Dyer, Jr. was done intentionally, that means purposeful,
willfully, but not by accident. And we'll get into each one of these and how the evidence
applies to these, but I guess in summary, James Dyer did not die by accident. He was
intentionally murdered by these individuals. The second . . . is that it was done with
premeditation. What that means is . . . that they thought it over before they went in and
did it. That's what premeditation is. There's even an instruction about what does that
31

mean, thought it over, you could think it over, just a half second before you actually fired
the fatal shot, that's true, but that's for you to decide whether or not they thought it over
before they actually committed the act.
"Again, I would suggest that the evidence does support the fact that these three,
along with Mr. Armstrong, clearly thought over what they were about to do before they
went to Rhonda Shaw's house. This was no happenstance. This was no accident. This is
something these four individuals thought about as they made their way over to Rhonda
Shaw's house. It's the reason they went there, was to get James Dyer." (Emphasis added.)

Misstatement of Law

Kettler, in an identical argument to the one advanced by codefendants Williams
and Phillips, contends that the prosecutor's "half second" description of premeditation is
analogous to stating premeditation can be instantaneous—language this court
disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Kettler makes a
persuasive point.

In Holmes, the victim was shot and killed in a struggle over a gun. The defendant
was convicted of premeditated first-degree murder, although there was no evidence of
premeditation before the struggle began. During closing argument, the prosecutor stated
that "'premeditation can occur in an instant. That's the law in the State of Kansas.'" 272
Kan. at 497. Then, in rebuttal the prosecutor stated that "'premeditation can take a
second. . . . It can happen in a second.'" 272 Kan. at 497. This court determined that the
prosecutor's statements constituted a deliberate misstatement of the law, noting the
prosecutor had been cautioned in the jury instructions conference before argument began
to avoid such comments. Cumulatively, the lack of evidence of premeditation before the
struggle began and the deliberate nature of the comments convinced this court that the
prosecutor's misconduct created reversible error. 272 Kan. at 499-500.

32

Consistent with Holmes, this court has repeatedly warned prosecutors about going
outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that
are analogous to stating premeditation can occur in the same instant as the act that results
in a death. See, e.g., State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011)
(prosecutor's statement during closing argument that defendant could have formed
premeditation after the pull of the first trigger, "because remember, he pulls four times,"
improperly stated the law and essentially suggested that premeditation could have been
formed instantaneously); State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) ("We
have consistently found reversible misconduct when a prosecutor states or implies that
premeditation can be instantaneous."); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535
(2004) (reversible error for prosecutor to imply premeditation can be instantaneous, based
on closing argument that "'[o]ne squeeze of a trigger is all it takes'"); State v. Pabst, 273
Kan. 658, 662, 44 P.3d 1230 ("A discussion of PIK Crim. 3d 56.04[b] in closing
argument should avoid any temptation to use a synonym to convey the suggestion of 'an
instant' without using the actual phrase."), cert. denied 537 U.S. 959 (2002); State v.
Moncla, 262 Kan. 58, 70-73, 936 P.2d 727 (1997) (adding phrase "'it may arise in an
instant'" to pattern instruction on premeditation was inappropriate; use of such language
tended to diminish importance of the element of premeditation).

The State suggests that while the prosecutor's "half second" reference was inartful,
the prosecutor was merely trying to convey that the jury could find the decision to kill
Dyer occurred in half a second, and it was the jury's duty to determine if that constituted
"thinking it over beforehand." This argument is not persuasive. The prosecutor's
statement informed the jury that the "beforehand" period could be a half second. Further,
the descriptive term "half second" is obviously a shorter period of time than the "'in a
second'" phrase disapproved in Holmes and is not significantly different than saying "'in
an instant'" or in a "'squeeze of a trigger,'" as disapproved in several cases. As in those
cases, Kettler's jury could have taken the prosecutor's choice of words as suggesting that
33

premeditation can be instantaneous with the homicidal act. As such, we conclude the
prosecutor misstated the law.

Not Reversible Error

With prosecutorial misconduct established, it is necessary to determine whether
the error requires reversal under the second analytical step. As we have discussed, this
requires a harmlessness inquiry using three factors. See Bridges, 297 Kan. at 1012.

In assessing the first of these factors of whether gross and flagrant conduct
occurred, a misstatement of the law can be considered gross and flagrant, especially if the
statement is contrary to a longstanding rule of law. See State v. Kemble, 291 Kan. 109,
121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include
repeated comments, emphasis on improper point, planned or calculated statements,
violation of a well-established rule, and violation of a rule designed to protect a
constitutional right); accord State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012).
Given our past advice that prosecutors should be especially careful in discussing the
meaning of the term "premeditation," we conclude the misconduct was gross and
flagrant.

Nevertheless, we do not find evidence of ill will. A prosecutor's ill will is often
"'reflected through deliberate and repeated misconduct.' [Citation omitted.]" State v.
Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). These circumstances do not exist in this
case. The misstatement was isolated and surrounded by correct statements of law. As
shown in the portion of the transcript quoted above, both before and after the reference to
the "half second," the prosecutor mentioned correctly that premeditation means "thought
it over" beforehand. The prosecutor argued that the evidence showed that Kettler and the
others thought over the killing of Dyer before they arrived at Shaw's house. Given the
context of the statement, we conclude the prosecutor was not motivated by ill will.
34


Turning to the third factor, whether the evidence against the defendant was of such
a direct and overwhelming nature that the misconduct would likely have had little weight
in the minds of the jurors, we conclude there is no reasonable possibility the misstatement
affected the verdict. The State's theory of premeditation was that Williams, Kettler,
Phillips, and Armstrong went into Shaw's house with the intent to kill Dyer. In fact,
immediately upon making the misstatement, the prosecutor said that Kettler and the
others went to Shaw's house "to get" Dyer and they thought about getting him on their
way from the liquor store to the house. This theme was repeated and emphasized
throughout the closing argument. As we have discussed, there was considerable evidence
to support this theory, which distinguishes this case from Holmes, 272 Kan. 499-500,
where this court reversed a defendant's conviction because of a similar statement.
Further, the State did not discuss or emphasize any version of the facts that would suggest
any of the defendants premeditated the murder in an instant or a half second.

In addition, the trial court properly instructed the jury on the definition of
premeditation and instructed the jury that arguments of counsel were not evidence.
Specifically, the trial court gave PIK Crim. 3d 56.04(b) (premeditation) in conjunction
with the instruction on first-degree murder prior to the parties' closing arguments. See
State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000) ("Consistent with our past
decisions, we conclude that the definition of 'premeditation' in PIK Crim. 3d 56.04[b]
adequately conveys the concept that 'premeditation' means something more than the
instantaneous, intentional act of taking another's life."). The trial court also gave PIK
Crim. 3d 54.05 (responsibility for crimes of another), which informed the jury, in part,
that "[a] person who, either before or during it commission, intentionally aids or abets
another to commit a crime with intent to promote or assist in its commission is criminally
responsible for the crime committed." See K.S.A. 21-3205(1) (discussed previously).
Because the evidence suggested that Kettler was not the one who fired the shots at Dyer,
35

the application of this instruction to the facts meant that the jury had to find that the
premeditation occurred before Kettler's conspirators began the fight.

Because we presume the jury followed the court's instructions, the court's
guidance served to mitigate any potential harm caused by the prosecutor's statements. See
State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) ("Although these
instructions do not give the prosecutor a free pass on misconduct, they are appropriate
considerations when evaluating whether a jury was misled."); State v. Hebert, 277 Kan.
61, 85, 82 P.3d 470 (2004) (prosecutor's improper comment regarding premeditation was
not reversible error when there was no evidence that prosecutor deliberately misstated the
law, jury was given proper PIK instruction on premeditation, and jury was told that
arguments of counsel were not evidence); State v. Doyle, 272 Kan. 1157, 1165-66, 38
P.3d 650 (2002) (no indication prosecutor purposefully misstated the law and evidence of
premeditation was strong); Jamison, 269 Kan. at 572-73 (prosecutor's misstatement on
the law on premeditation was not reversible error when the jury was properly instructed
on the law).

In light of the jury instructions, the facts of the case, and the theme of the
prosecutor's argument that the premeditation had occurred before Kettler and the others
arrived at Shaw's house, we conclude the jury would not have been confused or misled by
the prosecutor's misstatement. The State has demonstrated beyond a reasonable doubt
that the prosecutor's misstatement did not affect the outcome of the trial and does not
require reversal.

Affirmed.