State v. Littlejohn

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,872

STATE OF KANSAS,
Appellee,

v.

KEDRIN LITTLEJOHN,
Appellant.


SYLLABUS BY THE COURT


1.
K.S.A. 22-3414(3) creates a procedural hurdle when a party fails to object because
the statute establishes a preservation rule for jury instruction claims on appeal. It
provides, in part, that no party may assign as error a district court's giving or failure to
give a particular jury instruction, including a lesser included offense instruction, unless
the giving or failure to give the instruction is clearly erroneous. If it is clearly erroneous,
appellate review is not predicated upon an objection in the district court.

2.
To establish that the giving or failure to give a jury instruction was clearly
erroneous, the reviewing court must determine whether there was any error at all. This
requires demonstrating that giving the proposed instruction would have been both legally
and factually appropriate, employing an unlimited review of the entire record. And if
error is found on that basis, then the court moves to a reversibility inquiry in which it
assesses whether it is firmly convinced the jury would have reached a different verdict
had the instruction been given. The defendant maintains the burden to establish the
degree of prejudice necessary for reversal.
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3.
When reviewing a district court ruling on a motion to suppress a confession, an
appellate court reviews the factual underpinnings of the decision under a substantial
competent evidence standard. The ultimate legal conclusion drawn from those facts is
reviewed de novo. The appellate court does not reweigh the evidence, assess the
credibility of the witnesses, or resolve conflicting evidence.

4.
A defendant challenging the sufficiency of the charging document for the first
time on appeal must show the alleged defect (1) prejudiced the defendant's preparation of
a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent
prosecution; or (3) limited the defendant's substantial rights to a fair trial.

5.
Failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority or in the face of contrary authority is akin to failing to brief
the issue. An issue not briefed by the appellant is deemed waived and abandoned.

6.
It has long been the law of Kansas that an accusatory pleading in a criminal action
may, in order to meet the exigencies of proof, charge the commission of the same offense
in different ways. Furthermore, in an alternative means case, the State is not required to
elect one means or another when presenting its case to the jury or when requesting jury
instructions.

7.
When the sufficiency of the evidence is challenged in a criminal case, this court
reviews such claims by looking at all the evidence in a light most favorable to the
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prosecution and determining whether a rational factfinder could have found the defendant
guilty beyond a reasonable doubt. In determining whether there is sufficient evidence to
support a conviction, the appellate court generally will not reweigh the evidence or
evaluate the credibility of witnesses.

8.
A letter of additional authority pursuant to Supreme Court Rule 6.09(b) (2013
Kan. Ct. R. Annot. 50) is reserved for citing significant relevant authorities not
previously cited in the party's brief which come to the party's attention after briefing.
Appellate courts will not consider new issues raised for the first time in a party's Rule
6.09(b) letter.

9.
Cumulative trial errors, when considered collectively, may require reversal of the
defendant's convictions when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. If the evidence is overwhelming against
the defendant, however, no prejudicial error may be found based upon this cumulative
error rule. Furthermore, a single error cannot constitute cumulative error.

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion filed January 14,
2014. Affirmed.

Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A.
Maughan, of the same firm, was with her on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


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The opinion of the court was delivered by

ROSEN, J.: A jury found Kedrin Littlejohn guilty of felony murder, aggravated
robbery, aggravated kidnapping, and aggravated assault. The district court sentenced
Littlejohn to a hard 20 life sentence plus a consecutive sentence of 277 months'
imprisonment.

On appeal, Littlejohn raises several issues regarding the jury instructions given in
this case. Additionally, he argues that (1) the district court erred in denying his motion to
suppress the statements he made to detectives after being Mirandized; (2) the complaint
filed against him was defective because each crime charged contained alternative means
for committing the crime alleged; (3) the State presented insufficient evidence to convict
him of any crime; and (4) cumulative error denied him his right to a fair trial.

We find that none of the issues raised by Littlejohn have merit; accordingly, we
affirm his convictions.

FACTS

On the morning of May 12, 2008, Littlejohn and Shannon Bogguess went to Jim
Collins' used vehicle dealership in Wichita with a handgun, intending to take money from
Collins by force. Bogguess and Littlejohn confronted Collins inside the dealership. When
Collins resisted, Bogguess shot him in the leg. Bogguess and Littlejohn then put Collins
in a Hummer motor vehicle that was at the business in an attempt to take Collins to an
ATM, where they intended to force him to withdraw cash for them. As they were driving
the Hummer down St. Francis Street in Wichita, Collins jumped from the moving vehicle
into the street.

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At approximately 8 a.m., several witnesses at the scene saw Bogguess and
Littlejohn attempt to pick Collins up and get him back into the Hummer. When onlookers
started to yell at Bogguess and Littlejohn, Littlejohn ran back to the Hummer and got into
the front passenger seat. Bogguess stood by Collins for a few moments before running to
the Hummer. Bogguess then walked back to where Collins was sitting in the street and
shot him in the neck/shoulder area. Bogguess ran back to the Hummer, got into the
driver's seat, and drove the vehicle south down the street.

After the Hummer drove off, Jeremy Linot, a witness at the scene, ran out to the
middle of the street to help Collins. Linot saw that Collins was trying to roll to his left in
an attempt to stand up. As Linot was aiding Collins, someone yelled out to him to look
out. Linot looked up and saw that the Hummer had turned around and was heading back
towards them. Linot reacted by trying to drag Collins off the street, but he had to give up
his efforts in order to dodge the Hummer. The Hummer sped by, running over Collins.

The Hummer proceeded north on St. Francis Street and eventually turned west
onto Lewis Street. Shortly thereafter, police and medical personnel arrived, and Collins
was pronounced dead at the scene at 8:20 a.m. A crime scene investigator collected a cell
phone and a 9 mm cartridge casing at the scene. It was later determined that the cell
phone belonged to Bogguess.

David Dresher was walking east on Lewis Street a little after 8 a.m. when he saw
the Hummer traveling very fast in the opposite direction. Dresher saw the Hummer drive
through a stop sign and eventually come to a stop in the middle of the street where it
remained for a few moments before backing up and driving into an alleyway on the south
side of Lewis Street between Broadway and Topeka Streets. Dresher kept walking and
eventually saw a police car come speeding from the west. Dresher realized that the police
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were probably looking for the Hummer, so he flagged the officer down and directed him
to the alleyway where he had last seen the Hummer.

A second officer, John Duff, was driving his police car east on Lewis when he saw
a man, later identified as Littlejohn, standing on the northwest corner of Lewis and
Broadway Streets. Duff made eye contact with Littlejohn but continued east on Lewis in
search of the Hummer. Duff saw that a police car was pulled over on Lewis and that an
officer was speaking to Dresher, who was pointing back towards the west. Duff
continued driving east on Lewis but soon turned around when he saw that the officer had
driven his car further to the west, parked, and gotten out of his car with his gun drawn.
Duff joined the officer at that position where they eventually located the Hummer parked
in the alleyway. After determining that no one was inside the Hummer or in the alley, the
officers secured the area and reported the Hummer's license plate and vehicle
identification numbers to dispatch.

After performing these duties, Duff was standing in the parking lot of a nearby
Chinese restaurant when Littlejohn approached him. Littlejohn was breathing hard,
sweating, and spitting—behavior Duff believed indicated that Littlejohn had been
running. Duff recognized Littlejohn as the man he had previously seen standing on the
corner of Lewis and Broadway, but at that time, Duff did not notice Littlejohn breathing
hard, sweating, or spitting.

Littlejohn told Duff that he had been robbed, a story which amazed Duff
considering the number of police cars traveling through the area that morning. Duff asked
Littlejohn what had been taken from him, and Littlejohn said his cell phone. Duff asked
Littlejohn where the robbery had occurred, and Littlejohn pointed at the Hummer and
said that "they" had done it. Duff asked Littlejohn for his name, and Littlejohn told him
that his name was Deidra Howard.
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Littlejohn told Duff that the people in the Hummer had robbed him of his cell
phone at gunpoint and made him get into the Hummer in the area of Douglas and Hillside
Streets, an area quite a distance away from their current location. Littlejohn told Duff that
the driver was a Hispanic male with blond hair that had been dyed red and that two other
people were inside the Hummer—a white male with a pink shirt and a black male with
gray hair. He said that the white male sat in the front passenger seat and the black male
sat in the back passenger seat with Littlejohn. Duff asked Littlejohn if the men had taken
anything besides his cell phone. Littlejohn said no.

Littlejohn was eventually transported to city hall for questioning. As they were
walking into city hall, Littlejohn told Duff that his name was Kedrin Littlejohn, not
Deidra Howard. Duff took Littlejohn to an interview room, handcuffed him to a table,
and put a leg iron on his ankle. Duff left the interview room but later heard a commotion
and went back inside. There, he saw Littlejohn laying on the floor and looking like he
was having some sort of medical problem. Duff immediately yelled for help. When Duff
crawled underneath the table to unlock Littlejohn's leg iron, Duff noticed that Littlejohn
had blood on the bottom of his shoes. Police removed Littlejohn's shoes and clothing and
placed those items into custody. After giving him a jumpsuit to wear, Littlejohn was
transported to the hospital where a doctor examined Littlejohn and determined that there
was nothing medically wrong with him. Littlejohn was taken back to city hall and
eventually interviewed by two detectives. The interview started at 1:53 p.m.

Prior to that time, police went to Collins' vehicle dealership and saw large amounts
of blood on the floor in different locations within the shop area of the building. It was
apparent to police that somebody had walked in the blood because they observed at least
two different sole pattern impressions in the blood. A crime scene investigator later
collected two shell casings and an unfired cartridge from the building.

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At 1 p.m. that same day, police learned that Collins' credit cards were being used
at the Towne East shopping area in Wichita. Police went to that location to investigate
and ultimately arrested Bogguess at a nearby location. Credit cards belonging to Collins,
as well as his used vehicle dealer's license, were found in Bogguess' possession. Also
found in Bogguess' possession was a cell phone which was later determined to belong to
Littlejohn. Police later reviewed video footage showing Bogguess using Collins' credit
cards at a Sears store located at Towne East.

Additionally, police found a red Chevy Blazer parked in a Dillon's parking lot near
Collins' dealership. The Blazer was registered to Carla Abraham, Littlejohn's mother.
Police spoke to Abraham about the vehicle. She said that Littlejohn left her house very
early that morning in the Blazer and that she had not seen or heard from him since that
time. Inside the Blazer, police found a McDonald's paycheck stub made out to Littlejohn.

After being advised of and waiving his Miranda rights, Littlejohn spoke with
detectives, repeating his story of being robbed by the occupants of the Hummer. After
taking a 30-minute break, the detectives returned to the interview room and eventually
told Littlejohn that bloody footprints were found inside Collins' dealership and that the
sole patterns were consistent with his shoes. After hearing this, Littlejohn admitted to
participating in the crimes. Sometime after Littlejohn's shoes were seized, law
enforcement determined that the sole pattern on Littlejohn's shoes matched the sole
pattern of the bloody footprints found at Collins' dealership. Furthermore, Collins' DNA
was found on one of Littlejohn's shoes and on his shirt.

Littlejohn told detectives that he had met Bogguess several months ago at a club in
downtown Wichita. Littlejohn said that Bogguess had told him that he knew how they
could get some money and that all Littlejohn would have to do was point a gun.
Littlejohn said that in the weeks leading up to and on the morning of the incident, they
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discussed robbing Collins. Bogguess told Littlejohn that Collins had a lot of money and
that Littlejohn could get $10,000 for participating in the robbery.

Littlejohn met Bogguess that morning at the Dillon's parking lot. They entered
Collins' building using the back stairway. Inside, they confronted Collins. Littlejohn
admitted to pointing a gun at Collins and ordering him to get down on the floor. As
Littlejohn was doing this, Bogguess went and retrieved a set of keys—presumably the
keys to the Hummer that was parked in the garage area of the building. Littlejohn said
that when Bogguess returned, he took the gun from him. At this point, Collins attacked
Bogguess. During the struggle, Bogguess fired the gun twice—once at the ceiling and
once at Collins, shooting him in the leg.

After Collins was shot, he fell to the floor. As Bogguess picked Collins up and put
him into the Hummer, Littlejohn held the gun. Littlejohn said that the purpose of placing
Collins in the Hummer was that they planned to take him to an ATM machine to get cash.
They left the building in the Hummer, but before they could make it to an ATM machine,
Collins jumped out of the vehicle on St. Francis Street.

Littlejohn said that after Collins jumped out of the Hummer, they stopped the
vehicle, got out, and tried to get Collins off the street and back into the vehicle. Littlejohn
said that Collins yelled for help while he was on the street, and Bogguess told him to shut
up. When it became apparent that they could not get Collins back into the vehicle,
Littlejohn went back to the Hummer and got into the front passenger seat. When
Bogguess came back to the Hummer, Littlejohn said that he gave the gun to Bogguess or
Bogguess took possession of the gun. Bogguess then walked back and shot Collins.
Littlejohn said that he did not actually see Bogguess shoot Collins, but he heard the
gunshot. Bogguess got into the driver's seat of the Hummer and drove the vehicle away
before turning it around and running over Collins.
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Littlejohn said that they drove to an area that he was unfamiliar with and ditched
the Hummer. As they ran from the Hummer, Bogguess dropped the gun they had used in
a nearby trash can. Subsequently, police recovered a 9 mm semiautomatic handgun from
a trash can located at the southwest corner of Broadway and Lewis. A firearms examiner
later confirmed that shell casings recovered from Collins' place of business and at the
scene of the shooting on St. Francis Street had been ejected from this gun.

Littlejohn told detectives that he and Bogguess ran together to a nearby
McDonald's. Notably, a witness who was pulling out of the McDonald's drive-through
that morning reported to police that she saw two men—fitting the descriptions of
Littlejohn and Bogguess—running past the restaurant together. Littlejohn stated that
when they got to McDonald's, he realized that he did not have his cell phone, so he turned
around and ran back to the Hummer. Bogguess continued running. By the time Littlejohn
got to the area where the Hummer was parked, police had already arrived at the scene. It
was at this point when Littlejohn decided to approach an officer and tell him that he was
the victim of a robbery.

At 5:32 p.m., after Littlejohn's interview was completed, he began complaining
about having chest pains. He was transported to the hospital where he was again checked
and determined to be suffering no medical complications. He was released from the
hospital and taken back to the city building. While waiting to be transported to the
Sedgwick County Adult Detention Facility, Littlejohn asked an officer how long he
would be in jail. The officer told him that she did not know. In response, Littlejohn said,
"I'm going to get probably life." Littlejohn was eventually transported and booked into
the detention facility.

A firearms trace through the Bureau of Alcohol, Tobacco, and Firearms of the 9
mm handgun recovered from the trash can determined that the gun had been part of a
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multiple gun purchase by a woman named Jocqulyn Johnson. A detective spoke with
Johnson and learned that the handgun had been stolen from a vehicle parked in Johnson's
driveway sometime between April 11 and April 25, 2008. Johnson and Littlejohn's
mother lived on the same residential block. Littlejohn had been living at his mother's
residence in April 2008.

During their investigation, police reviewed the cell phone records of Littlejohn and
Bogguess, which showed that they had the following text-message exchange on the
morning of May 12, 2008:

7:07 a.m.—Littlejohn to Bogguess—"what's up?"
7:09 a.m.—Bogguess to Littlejohn—"what's up, I'm here waiting. He should be
here pulling up at any minute."
7:09 a.m.—Littlejohn to Bogguess—"where you at, I'm on my way."
7:13 a.m.—Bogguess to Littlejohn—"Douglas and Chautauqua."
7:18 a.m.—Littlejohn to Bogguess—"here I come."
7:19 a.m.—Bogguess to Littlejohn—"Bet."
7:27 a.m.—Littlejohn to Bogguess—"I'm on Douglas."
7:28 a.m.—Bogguess to Littlejohn—"stop before you get to the store."
7:29 a.m.—Littlejohn to Bogguess—"K."
7:31 a.m.—Bogguess to Littlejohn—"the Dillons."
7:39 a.m.—Littlejohn to Bogguess—"where he at."
7:46 a.m.—Bogguess to Littlejohn—"hurry and do it." (This message failed to be
delivered to Littlejohn.)

Jaime Oeberst, the district coroner for Sedgwick County and the chief medical
examiner at the Sedgwick County Regional Forensic Science Center, performed an
autopsy on Collins on May 13, 2008. Oeberst determined that Collins had suffered
multiple blunt-force injuries and sustained two gunshot wounds—one to the right side of
his head and one to his lower left leg. Oeberst noted that the gunshot wound to Collins'
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head showed that the bullet entered behind Collins' right ear, traveled downward and
through his upper neck, and exited near the left corner of his mouth. Oeberst found
gunpowder residue around the entrance wound, indicating that the gun was fired no
greater than a foot away from Collins' head.

With regard to the injuries Collins sustained as a result of being run over by the
Hummer, Oeberst noted that Collins suffered multiple skull fractures and suffered
fractures to his sixth cervical vertebra, ribs, sternum, and lumbar spine. Furthermore, both
of Collins' shoulders were dislocated, his collarbone was dislocated, and his right
shoulder blade was fractured.

Oeberst opined that the cause of Collins' death was multiple blunt force injuries
and that the gunshot wound to Collins' neck contributed to his death. She stated that the
gunshot wound alone could have proven to be fatal but that the blunt force trauma (i.e.,
the injuries Collins sustained as a result of being run over by the Hummer) killed Collins
before the gunshot wound could.

The State charged Littlejohn with alternative counts of premeditated first-degree
murder and first-degree felony murder and single counts of aggravated robbery,
aggravated kidnapping, and aggravated assault based on the act of nearly running over
Jeremy Linot with the Hummer. Littlejohn's case proceeded to a jury trial where the State
presented the above-mentioned facts.

Carla Abraham, Littlejohn's mother, testified for the defense at trial. She said that
on May 11, 2008, which was Mother's Day, Littlejohn spent the day with her. Abraham
said that Littlejohn told her about a possible job he was really excited about which
involved working at a car lot.

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Littlejohn testified at trial, claiming that Bogguess forced him at gunpoint to
participate in the robbery and kidnapping of Collins and that Bogguess acted alone in
killing Collins.

Littlejohn said that he had known Bogguess for only a couple of weeks prior to the
robbery. About a week prior to the robbery, Littlejohn complained to Bogguess about
being unsatisfied with working at McDonald's. In response, Bogguess told Littlejohn that
he was making $10 an hour detailing cars and that he could get Littlejohn a job doing the
same thing.

Littlejohn said that Bogguess called him on the evening of May 11, 2008, asking
him if he was still interested in the job detailing cars. Littlejohn said he was, so Bogguess
told Littlejohn to meet him at Collins' vehicle dealership the next morning at 7:30 a.m.
The next day, Littlejohn woke up at 7 a.m. and drove the Chevy Blazer to the area and
parked the vehicle in the Dillon's parking lot. When he parked, Littlejohn saw that
Bogguess was standing outside of Collins' building next to the garage door.

Littlejohn said he walked over to Bogguess, and Bogguess told him that the man
he needed to speak to about the job was upstairs in his office. Littlejohn walked up the
outside flight of stairs and into the building. He walked down a hallway and into an office
where he saw Collins. Littlejohn told Collins that he was there for the detailing job.
Collins told Littlejohn that he did not know what Littlejohn was talking about. Littlejohn
explained to Collins that Bogguess had told him about the detailing job and that he was
downstairs. Collins said that they should go downstairs to see what Bogguess was talking
about.

Collins and Littlejohn walked down a different flight of stairs that led to the
garage area on the floor level of the building. They walked towards the garage door
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which was open and looked around but did not see anybody. Littlejohn said at that
moment, Bogguess came into the garage holding a gun. Littlejohn said that he and
Collins reacted by putting their hands up in the air. Bogguess pointed the gun at Collins
and said, "[Y]ou been fucking me out of my money. I want my money you owe me." In
response, Collins said, "Come on Shane, why are you doing this?" Bogguess then shot
Collins in the leg, causing Collins to fall to the floor. Littlejohn said that Bogguess then
pointed the gun at him and ordered him to help put Collins in the Hummer. Littlejohn
told Bogguess that he did not "want any part of this." In response, Bogguess fired a shot
in the air. At that point, Littlejohn complied and helped get Collins into the Hummer.
Once Collins was in the vehicle, Bogguess told Littlejohn to give him his cell phone,
which Littlejohn did. Bogguess then told Littlejohn that he could either get into the
Hummer or get shot. Littlejohn said that he got into the front passenger seat of the
Hummer. Bogguess got into the driver's seat and drove the Hummer out of the garage and
onto the street. Bogguess eventually turned onto St. Francis Street where Collins jumped
from the vehicle.

After Collins jumped, Littlejohn said that Bogguess stopped the Hummer and told
him to get out and help load Collins back into the vehicle. Littlejohn said he walked over
to Collins, put his hand out, and asked Collins to please get back into the Hummer
because he, Littlejohn, did not want to get shot. According to Littlejohn, Collins scooted
away from them and called out for help. Bogguess told Littlejohn to get Collins into the
car. Littlejohn refused, saying he was not going to touch him. Bogguess then told him to
go back to the Hummer. Littlejohn did so and got into the front passenger seat. Littlejohn
said at that point, he looked for the keys, but they were not in the ignition. Bogguess then
walked up to the driver's side window and told Littlejohn to help him get Collins back
into the Hummer. According to Littlejohn, he just sat there and told Bogguess that he was
not helping him. In response, Bogguess started screaming. Bogguess then walked back to
where Collins was sitting in the street and shot him. Bogguess then ran back and got into
15



the driver's seat of the Hummer and drove the vehicle away but returned and ran over
Collins.

Littlejohn said that after Bugguess parked the Hummer in the alleyway, he got out
of the vehicle and ran towards McDonald's. Bogguess chased after him and yelled for
him to wait and come back. After they ran past McDonald's, Littlejohn said Bogguess
eventually stopped chasing him and ran in a different direction.

Littlejohn said that he eventually ran back to the front of McDonald's and saw a
police car drive by and go towards the alleyway where the Hummer was parked. He then
ran towards the police car and encountered Officer Duff. Littlejohn said that he told Duff
that his name was Deandra and that he had been robbed by the occupants of the Hummer.
Littlejohn explained that Deandra was his middle name. He denied telling Duff that his
name was Deidra Howard.

Littlejohn testified that he made up the story of being a victim of a robbery
because, at the time, he was on probation and was afraid that his probation would be
revoked if he told police that Bogguess forced him to participate in the crimes.
Furthermore, Littlejohn said that he told the detectives that he was a participant in the
crimes because he thought that was what they wanted to hear. He explained that he did
not tell them the story that he was testifying to at trial—that he went to Collins' place of
business for a job interview and was subsequently forced to participate in the crimes—
because he did not think they would believe him. Finally, Littlejohn denied ever pointing
the gun at Collins or even having possession of the gun.

The jury found Littlejohn guilty of felony murder, aggravated robbery, aggravated
kidnapping, and aggravated assault. The district court sentenced Littlejohn to a hard 20
16



life sentence for the felony-murder conviction and a consecutive sentence of 277 months'
imprisonment for the remaining convictions. Littlejohn filed a timely notice of appeal.

JURY INSTRUCTIONS

On appeal, Littlejohn contends that the district court erred in instructing or failing
to instruct the jury on several issues. Littlejohn argues that the district court erred when it:
(1) failed to instruct the jury on both second-degree intentional and unintentional murder
as lesser included offenses of felony murder; (2) failed to give a unanimity instruction in
connection to the felony-murder charge; (3) instructed the jury on criminal liability based
on an aiding or abetting theory; and (4) instructed the jury on the defense of compulsion.

Littlejohn concedes on appeal that he failed to request jury instructions on second-
degree intentional and unintentional murder and failed to object to the district court's
instructions regarding criminal liability based on aiding or abetting and the defense of
compulsion. Accordingly, a clearly erroneous standard of review applies to these issues.
See K.S.A. 22-3414(3). But, Littlejohn contends that he requested a unanimity instruction
in connection to the felony-murder charge, resulting in the application of the more
favorable harmless error standard of review. See State v. Plummer, 295 Kan. 156, 162-
63, 283 P.3d 202 (2012).

Based on the transcript of the jury instruction conference, it is clear that the district
court, not Littlejohn, proposed giving a unanimity instruction in connection to the felony-
murder charge. The district court believed such an instruction was necessary because the
State alleged that the felony-murder charge was supported by two separate underlying
felonies (i.e., the aggravated robbery or aggravated kidnapping of Collins) and, thus, the
jury, if it found Littlejohn guilty of felony murder, had to be unanimous as to which
underlying felony supported the conviction. The State objected to the district court's
17



proposed unanimity instruction, stating that the two underlying felonies being alleged in
support of the felony-murder charge presented alternative means, not multiple acts, of
committing the felony murder. Accordingly, the State argued that a unanimity instruction
was unwarranted. See State v. Bailey, 292 Kan. 449, 458, 255 P.3d 19 (2011)
("[D]ifferent underlying felonies supporting a charge of felony murder are alternative
means rather than multiple acts."); see also State v. Becker, 290 Kan. 842, Syl. ¶ 4, 235
P.3d 424 (2010) ("In an alternative means case the jury must be unanimous as to guilt for
the single crime charged, but not as to the particular means by which the crime was
committed, so long as substantial evidence supports each alternative means.").

Defense counsel did not provide the district court with a legal argument as to why
a unanimity instruction should be given in connection with the felony-murder instruction.
He merely stated that he was "not going to agree" with not giving the instruction. The
district court agreed with the State's argument and decided not to give a unanimity
instruction.

Now on appeal, Littlejohn provides this court with a legal argument that he failed
to provide to the district court. He claims that the felony-murder charge was supported by
multiple acts (i.e., Bogguess shooting Collins in the street and Bogguess running Collins
over with the Hummer) which individually could have constituted the crime of felony
murder. Based on this new assertion, he argues the district court should have given its
proposed unanimity instruction.

As we have explained, "it is important to remember that the purpose of requiring
an objection is to allow the district court to correct an error, if one occurred. [Citation
omitted.]" State v. Ellmaker, 289 Kan. 1132, 1139, 221 P.3d 1105 (2009), cert. denied
130 S. Ct. 3410 (2010). In Ellmaker, the defendant objected to an instruction on one
ground but asserted a different argument on appeal. Under those circumstances, even
18



though the defendant had objected to the instruction, this court concluded the defendant
failed to comply with K.S.A. 22-3414(3) and, thus, applied a clearly erroneous standard
of review. Ellmaker, 289 Kan. at 1139; see State v. Tapia, 295 Kan. 978, 995, 287 P.3d
879 (2012) (clearly erroneous standard of review applied on appeal to defendant's jury
instruction issue when defendant's request for jury instruction before district court was
interpreted as being so indistinct as to not clearly communicate the request or,
alternatively, as being different from the request he was making on appeal).

Accordingly, review of all the jury instruction issues raised in this appeal is
controlled by K.S.A. 22-3414(3) and the stair-step analytical process set out in State v.
Herbel, 296 Kan. 1101, Syl. ¶¶ 7-8, 299 P.3d 292 (2013), and State v. Williams, 295 Kan.
506, 511, 286 P.3d 195 (2012). As Williams articulated, K.S.A. 22-3414(3) creates a
procedural hurdle when a party fails to object because the statute establishes a
preservation rule for instruction claims on appeal. It provides, in part, that no party may
assign as error a district court's giving or failure to give a particular jury instruction,
including a lesser included offense instruction, unless the giving or failure to give the
instruction is clearly erroneous. If it is clearly erroneous, appellate review is not
predicated upon an objection in the district court. Williams, 295 Kan. at 512-13.

To establish that the giving or failure to give an instruction was clearly erroneous,
the reviewing court must determine whether there was any error at all. This requires
demonstrating that giving the proposed instruction would have been both legally and
factually appropriate, employing an unlimited review of the entire record. Williams, 295
Kan. at 515-16. And if error is found on that basis, then the court moves to a reversibility
inquiry in which it assesses whether it is firmly convinced the jury would have reached a
different verdict had the instruction been given. The defendant maintains the burden to
establish the degree of prejudice necessary for reversal. 295 Kan. at 516.
19



A. Did the district court err in failing to instruct the jury on second-degree intentional
and unintentional murder as lesser included offenses of felony murder?

1. Were these instructions legally appropriate?

K.S.A. 21-3402 defines second-degree murder as "the killing of a human being
committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances
manifesting extreme indifference to the value of human life." The statute focuses
culpability on whether the killing is intentional or unintentional, not whether a deliberate
and voluntary act leads to death. State v. Deal, 293 Kan. 872, 885, 269 P.3d 1282 (2012).
Both types of second-degree murder constitute lesser included offenses of felony murder.
See State v. Calvin, 279 Kan. 193, 202, 105 P.3d 710 (2005). But see K.S.A. 2012 Supp.
21-5109(b)(1) (there are no lesser degrees to felony murder effective July 1, 2012); see
also State v. Wells, 297 Kan. 741, Syl. ¶ 8, 305 P.3d 568 (2013) ("Because the
legislature's 2012 amendment to K.S.A. 21-5109 regarding lesser included crimes was
not merely procedural or remedial but substantive, it is not to be applied retroactively to a
case pending on appeal at the time of the amendment."). The instructions on second-
degree intentional murder and second-degree unintentional murder would have been
legally appropriate in this case.

2. Were these instructions factually appropriate?

Because the evidence presented at trial showed that Bogguess killed Collins by
running him over with the Hummer, Littlejohn's guilt for either type of second-degree
murder would have to be based on an aiding or abetting theory. Second-degree
intentional murder is a specific-intent crime requiring the defendant to have the specific
intent to kill. Deal, 293 Kan. at 883. Furthermore, "[f]or a defendant to be convicted of a
specific-intent crime on an aiding and abetting theory, that defendant must have the same
20



specific intent to commit the crime as the principal." State v. Becker, 290 Kan. 842, 852,
235 P.3d 424 (2010).

Even if we assume without deciding that an instruction on second-degree
intentional murder would have been factually appropriate, we conclude that failing to
give such an instruction was not clearly erroneous. The evidence presented at trial clearly
established that Littlejohn was guilty of felony murder because he participated in an
aggravated robbery and aggravated kidnapping of Collins and that Collins was killed
during the commission of, attempt to commit, or flight from these two inherently
dangerous felonies. See K.S.A. 21-3401(b) (felony murder); K.S.A. 21-3436(a)(2) and
(4) (identifying aggravated kidnapping and aggravated robbery as inherently dangerous
felonies); State v. Ransom, 288 Kan. 697, 713-14, 207 P.3d 208 (2009) ("[A] defendant
may be convicted of felony murder even if the victim was not killed by the defendant . . .
as long as the homicide occurred as a direct result of an inherently dangerous felony.").
Accordingly, we are not firmly convinced that the jury would have reached a different
verdict had the district court instructed the jury on second-degree intentional murder as a
lesser included offense of felony murder.

With regard to second-degree unintentional reckless murder, this court stated in
Deal that this type of murder is a killing of a human that is not purposeful, willful, or
knowing but which results from an act performed with knowledge the victim is in
imminent danger, although death is not foreseen. Deal, 293 Kan. at 884. As Littlejohn
concedes in his brief, the facts of this case established that Collins' death resulted from an
act intended to bring about his death. Thus, an instruction on second-degree unintentional
but reckless murder would have been factually inappropriate. Cf. State v. Cordray, 277
Kan. 43, 56, 82 P.3d 503 (2004) (evidence sufficient to support jury verdict of
unintentional but reckless second-degree murder where the defendant fired a gun in the
general direction of a vehicle at night, striking an occupant); State v. Jones, 27 Kan. App.
21



2d 910, 915, 8 P.3d 1282 (2000) (held jury could have found evidence supporting
recklessness where witnesses testified defendant shot gun randomly over crowd of people
with eyes closed).

B. Did the district court err in not giving a unanimity instruction in connection with the
felony-murder instruction?

As mentioned above, Littlejohn contends that the district court should have given
a unanimity instruction regarding the felony-murder charge because the jury was
presented with evidence of multiple acts (i.e., Bogguess shooting Collins in the street and
Bogguess running Collins over with the Hummer) which individually could have
constituted the crime of felony murder.

1. Was this instruction legally appropriate?

"When several acts are alleged, any one of which could constitute the crime
charged, the court is presented with a multiple acts case that requires the jury to be
unanimous as to which one of the acts the defendant committed." State v. Jones, 295 Kan.
1050, Syl. ¶ 3, 288 P.3d 140 (2012); see State v. Sanborn, 281 Kan. 568, 569, 132 P.3d
1277 (2006) ("A unanimity instruction is used when the State charges one crime but
relies on multiple acts to support that one crime." [Emphasis added.]). To ensure
unanimity in such cases, the district court must give the jury a unanimity instruction, or
the State must elect the particular act it relies on for conviction. State v. Voyles, 284 Kan.
239, 244-45, 160 P.3d 794 (2007).

In Voyles, this court laid down analytical steps to follow when considering a
multiple acts claim on appeal. The threshold question in the Voyles framework, over
which an appellate court exercises unlimited review, is whether the case truly involves
multiple acts, i.e., "whether the defendant's actions could have given rise to multiple
22



counts of the charged crime or whether the alleged conduct was unitary." (Emphasis
added.) State v. Trujillo, 296 Kan. 625, 629-30, 294 P.3d 281 (2013). If this case does not
involve multiple acts, then Littlejohn's argument fails. See Voyles, 284 Kan. at 244.

Bogguess' acts of shooting Collins and then running him over with the Hummer do
not constitute multiple acts supporting the felony-murder charge against Littlejohn
because those actions could not have given rise to multiple counts of felony murder.
Regardless of the number of potentially fatal acts performed against Collins, he could
only be killed once during the commission of, attempt to commit, or flight from the
underlying felonies supporting the felony-murder charged in this case. Accordingly,
Littlejohn could only be charged and convicted of a single count of felony murder. Thus,
a unanimity instruction in connection with the felony-murder charge would not have been
legally appropriate.

C. Did the district court err in instructing the jury regarding aiding or abetting?

Next, Littlejohn argues that the district court erred by not adding the following
language to the aiding or abetting instruction given to the jury: "Mere association with
the principals who actually commit the crime or mere presence in the vicinity of the
crime are themselves insufficient to establish guilt as an aider and abettor." State v.
Green, 237 Kan. 146, Syl. ¶ 4, 697 P.2d 1305 (1985).

The district court instructed the jury that an aider or abettor is one

"who, either before or during its 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 regardless of the extent of the defendant's
participation, if any, in the actual commission of the crime."
23




Littlejohn contends that the above instruction—which was based on PIK Crim. 3d
54.05—was insufficient because the jury could have still found him guilty of the crimes
charged despite him testifying at trial that he was compelled to participate in the crimes
and was merely present when the crimes at issue occurred.

Though the additional language is a correct statement of law, this court has
repeatedly held that juries are presumed to intuit from the word "intentionally" in PIK
Crim. 3d 54.05 that proof of mere association or presence would be insufficient to
convict. See, e.g., State v. Edwards, 291 Kan. 532, 551-52, 243 P.3d 683 (2010); State v.
Davis, 283 Kan. 569, 581-83, 158 P.3d 317 (2006); State v. Hunter, 241 Kan. 629, 639,
740 P.2d 559 (1987). Based on that precedent, we decline to find that the district court's
refusal to add the requested language to the pattern instruction on aiding or abetting was
clearly erroneous. But, as we recently noted in State v. Llamas, 298 Kan. 246, 261-62,
311 P.3d 399 (2013),

"The better practice would be to include the mere association or presence language when
a defense is based on the theory that a defendant was merely present and did not actively
aid and abet a crime. We encourage trial judges to use language from our cases, such as
was suggested in this case. Failing to do so may not constitute error if, as in this case, the
instructions properly and fairly state the law as applied to the facts of the case. [Citations
omitted.] That does not mean the instruction cannot be improved upon, and adding the
mere association or presence language would do so by explaining the legal concepts in
commonly understood words."





24



D. Did the district court err when it instructed the jury regarding the defense of
compulsion?

Based on Littlejohn's testimony at trial, the district court believed that it was
necessary and appropriate to give the following instruction to the jury regarding the
defense of compulsion:

"Compulsion is a defense if the defendant acted under the compulsion or threat of
imminent infliction of death or great bodily harm, and he reasonably believed that death
or great bodily harm would have been inflicted upon him had he not acted as he did.
"Compulsion is not a defense to a crime of First Degree Murder—Premeditated.
"Compulsion may be a defense to a crime of First Degree Murder—Felony
Murder—if the compulsion is also applicable to the underlying acts, i.e.,—Aggravated
Robbery or Aggravated Kidnapping.
"Such a defense is not available to one who willfully or wantonly placed himself
in a situation in which it was probable that he would have been subjected to compulsion
or threat." (Emphasis added.)

See Hunter, 241 Kan. at 642 (Compulsion may be used as a defense to felony murder
when compulsion is a defense to the underlying felony.).

Littlejohn contends that the district court erred when it included the italicized
language within its instruction on the defense of compulsion. He argues that there was no
evidence presented at trial showing that he willfully or wantonly placed himself in a
situation where it was probable that he would be subjected to compulsion or threat.
Instead, Littlejohn contends that the evidence presented at trial established that he was
either a voluntary participant in the crimes or that he was an innocent victim who was led
to Collins' dealership under false pretenses and was subsequently forced against his will
to participate in the crimes. He contends that by including the willful or wanton language,
the instruction improperly expanded his criminal liability for the crimes committed
25



against Collins because the instruction could have led the jury into concluding that his
mere presence within the vicinity of the crimes committed by Bogguess made him
criminally liable for those acts.

1. Was this instruction legally appropriate?

The district court's compulsion instruction was based on PIK Crim. 3d 54.13,
which in turn is based on K.S.A. 21-3209. That statute states:

"(1) A person is not guilty of a crime other than murder or voluntary
manslaughter by reason of conduct which he performs under the compulsion or threat of
the imminent infliction of death or great bodily harm, if he reasonably believes that death
or great bodily harm will be inflicted up him . . . if he does not perform such conduct.
"(2) The defense provided by this section is not available to one who willfully or
wantonly places himself in a situation in which it is probable that he will be subjected to
compulsion or threat." (Emphasis added.)

Clearly, the last paragraph of the district court's instruction is based on subsection
(2) of K.S.A. 21-3209. Because the district court instructed the jury on the defense of
compulsion, it was legally appropriate for the district court to also instruct the jury on the
circumstances which prevent a defendant from raising a compulsion defense.

2. Was this instruction factually appropriate?

In the Notes on Use to PIK Crim. 3d 54.13, it states that the instructional language
regarding when the defense of compulsion is unavailable "should be used only when
there is some evidence indicating that the defendant willfully or wantonly placed himself
or herself in the situation indicated." In State v. Scott, 250 Kan. 350, 827 P.2d 733 (1992),
26



this court explained the types of situations that would prevent a defendant from raising a
compulsion defense. The court stated:

"A compulsion defense is not available to a person who willfully or wantonly
places himself or herself in a situation in which it is probable that compulsion or threat
will occur; thus, a person who connects himself or herself with criminal activities or is
otherwise indifferent to known risks cannot use compulsion as a defense." (Emphasis
added.) Scott, 250 Kan. 350, Syl. ¶ 6.

Though Littlejohn testified at trial that he went to Collins' used vehicle dealership
for a job interview and ended up being compelled by Bogguess to participate in the
crimes, the State's evidence indicated that he was a voluntary participant in all the crimes.
The jury, however, was not required to accept either version in toto. See In re J.W.S., 250
Kan. 65, 67-68, 825 P.2d 125 (1992) ("It is respondent's position that there was no
evidence he aided and abetted in the death of Sauer. If Malone is believed, respondent
was the principal. If respondent's version is believed, then he was guilty of no crime. This
rationale is faulty. The jury was not required to accept, in toto, either version."); State v.
Lashley, 233 Kan. 620, 628, 664 P.2d 1358 (1983) (same). Therefore, the jury could have
found that Littlejohn went to Collins' vehicle dealership knowing that Bogguess intended
to rob Collins and that Bogguess subsequently forced Littlejohn to participate in the other
crimes. Thus, it was factually appropriate for the district court to inform the jury of when
the defense of compulsion is unavailable to a defendant.

POST-MIRANDA STATEMENTS

Next, Littlejohn argues that the district court erred when it failed to grant his
motion to suppress his post-Miranda statements to police. Littlejohn made a
contemporaneous objection at trial regarding the statements.

27



"When reviewing a district court ruling on a motion to suppress a confession, an
appellate court reviews the factual underpinnings of the decision under a substantial
competent evidence standard. The ultimate legal conclusion drawn from those facts is
reviewed de novo. The appellate court does not reweigh the evidence, assess the
credibility of the witnesses, or resolve conflicting evidence." State v. Ransom, 288 Kan.
697, Syl. ¶ 1, 207 P.3d 208 (2009).

Prior to trial, Littlejohn filed a motion seeking to have his post-Miranda
statements to police suppressed because he did not voluntarily and intelligently waive his
rights under Miranda and because his statements to police were involuntary and coerced
by the police. Within his motion, Littlejohn did not provide any factual allegations to
support his claims.

A pretrial hearing on the motion was conducted on October 8, 2010. At the
hearing, the district court judge stated that in preparation for the hearing, he had reviewed
a DVD recording and transcript of Littlejohn's interrogation. Notably, neither the DVD
nor the transcript is included within the record on appeal. At the hearing, Dr. Mitchell
Flesher testified on behalf of the defense regarding an evaluation of Littlejohn he
conducted in September 2009, 14 months after Littlejohn was interviewed by the
detectives. Detective Blake Mumma, one of the detectives who interviewed Littlejohn,
testified on behalf of the State regarding how he conducted the interview (including how
he Mirandized Littlejohn) and what Littlejohn's demeanor was like during the interview.

After hearing this evidence, the district court judge made the following findings of
fact and conclusions of law:

"Nowhere through this entire interview, which I did watch every minute of every
question, every answer of it, and I was especially watching the physical presentation, the
verbal delivery, all of those matters relating to Mr. Littlejohn, I noted nothing that gave
me any consideration at all that he was under the influence of any drugs or alcohol. That
28



he was under the belief that he had to say these things. That he was being coerced in
some way to say these things. Absolutely there were no promises made. No promises of
leniency or any favorite—any favoritism or favored treatment that might result from his
giving a statement.
"There is nothing whatsoever in my review of the tape, and now especially
considering the testimony and report of Dr. Flesher, that leads me to believe that Mr.
Littlejohn did not understand the Miranda warnings as were given to him, that he did not
appreciate them, and that there's nothing that leads me to believe that his waiver of them
was anything other than knowing, intelligent, freely, and voluntarily given.
"Yes, he's not as intelligent as measured by Dr. Flesher as other people. But in
and of itself that's not a factor that would invalidate or make involuntary his statements.
"For those reasons I will deny the motion that was filed on October 9 of 2009."

It is clear from this district judge's ruling that he relied heavily on the DVD
recording and transcript of Littlejohn's interrogation to determine whether Littlejohn
voluntarily waived his Miranda rights and whether his statements to the detectives were
freely made. In order to determine whether the district court's ruling on the suppression
motion was supported by substantial competent evidence, it would be necessary to review
the DVD and transcript. Unfortunately, Littlejohn has failed to include this evidence
within the record on appeal, which prevents review of his claim. See State v.
McCullough, 293 Kan. 970, 999, 270 P.3d 1142 (2012) ("The party claiming an error
occurred has the burden of designating a record that affirmatively shows prejudicial
error."); see also State v. Cervantes-Puentes, 297 Kan. 560, 564, 303 P.3d 258 (2013)
("But Cervantes-Puentes failed to include the photo array in the appellate record,
preventing our review of the district court's factual findings and legal conclusion
regarding the array.").




29



DEFECTIVE COMPLAINT

Next, Littlejohn argues that each charge filed against him contained alternative
means for committing the crime alleged. Based on this assertion, he claims that the
complaint lacked sufficient specificity to apprise him of the nature of the charges.
Littlejohn did not file a bill of particulars prior to trial or file a motion to arrest judgment
after his trial was complete.

A defendant challenging the sufficiency of the charging document for the first
time on appeal must show the alleged defect either "(1) prejudiced the defendant's
preparation of a defense; (2) impaired the defendant's ability to plead the conviction in
any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.
[Citation omitted.]" State v. Gracey, 288 Kan. 252, 254, 200 P.3d 1275 (2009); see State
v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006).

K.S.A. 22-3201(b) states in pertinent part: "The complaint, information or
indictment shall be a plain and concise written statement of the essential facts
constituting the crime charged, which complaint, information or indictment, drawn in the
language of the statute, shall be deemed sufficient."

In making his argument, Littlejohn does not contend that the charges filed against
him failed to allege any essential facts or were not drawn in the language of the
applicable statutes. He merely claims—providing no explanation or legal authority for his
claims—that because each charge contained alternative means for committing the crime
charged, the complaint prejudiced his ability to prepare a defense and impaired his
"ability to plea" his convictions in a subsequent prosecution.

30



Failure to support a point with pertinent authority or show why it is sound despite
a lack of supporting authority or in the face of contrary authority is akin to failing to brief
the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed
by the appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125,
284 P.3d 251 (2012).

Even if we ignore Littlejohn's failure to properly brief this issue, we still reject his
argument. In State v. Saylor, 228 Kan. 498, 503-04, 618 P.2d 1166 (1980), this court
stated: "It has long been the law of Kansas that an accusatory pleading in a criminal
action may, in order to meet the exigencies of proof, charge the commission of the same
offense in different ways." Furthermore, in an alternative means case, the State is not
required to elect one means or another when presenting its case to the jury or when
requesting jury instructions. State v. Stevens, 285 Kan. 307, 309, 172 P.3d 570 (2007),
overruled on other grounds by State v. Ahrens, 296 Kan. 151, 158-61, 290 P.3d 629
(2012). Accordingly, Littlejohn's complaint that the charges filed against him contained
alternative means and, thus, rendered the complaint deficient is without merit.

SUFFICIENCY OF THE EVIDENCE

Next, Littlejohn raises a number of conclusory arguments in his brief in an effort
to show that the State presented insufficient evidence to convict him of any crime.

When the sufficiency of the evidence is challenged in a criminal case, this court
reviews such claims by looking at all the evidence in a light most favorable to the
prosecution and determining whether a rational factfinder could have found the defendant
guilty beyond a reasonable doubt. State v. Frye, 294 Kan. 364, 374-75, 277 P.3d 1091
(2012). In determining whether there is sufficient evidence to support a conviction, the
31



appellate court generally will not reweigh the evidence or evaluate the credibility of
witnesses. State v. Hall, 292 Kan. 841, 859, 257 P.3d 272 (2011).

In his brief, Littlejohn first claims that the State

"failed to establish beyond a reasonable doubt the defendant's individual participation in
the joint criminal venture, the defendant's use of or possession of the firearm in this
matter, and the defendant's continued intent to participate in the vehicular trauma to the
victim after completion of the initial offense with the shooting of the victim."

Littlejohn provides no citation to the record in support for these claims, nor does
he provide any explanation of how these claims relate to each individual conviction.
Regardless, Littlejohn's statements to the detectives, when viewed in the light most
favorable to the State, established that Littlejohn and Bogguess planned to rob Collins
and acted on this plan on the morning of May 12, 2008. Furthermore, Littlejohn admitted
to detectives that he pointed the gun at Collins while inside his business establishment.

With regard to his "continued intent to participate in the vehicular trauma to the
victim" claim, Littlejohn is presumably arguing that in order to be convicted of felony
murder, there had to be evidence presented at trial showing that he had the intent to kill
Collins when Bogguess ran him over with the Hummer. This claim has no merit. In order
to convict Littlejohn of felony murder, the State had to show that Littlejohn participated
in an aggravated robbery and aggravated kidnapping of Collins and that Collins was
killed during the commission of, attempt to commit, or flight from these two inherently
dangerous felonies. Again, Littlejohn's statements to detectives established that he
participated in both the aggravated robbery and aggravated kidnapping of Collins. And
the jury could certainly conclude from the evidence that, at the very least, Collins was
killed while Littlejohn and Bogguess were attempting to flee from the crimes they just
32



committed. See State v. Cheffen, 297 Kan. 689, 699, 303 P.3d 1261 (2013) (The phrase
"in the commission of, attempt to commit, or flight from an inherently dangerous felony"
in K.S.A. 21-3401[b] does not create alternative means; instead, the phrase describes
factual circumstances sufficient to establish a material element of felony murder.).

Next, Littlejohn claims that the evidence established that Collins' death resulted
from either being shot or run over by the Hummer. Accordingly, he claims that the State
had to establish his liability for Collins' murder under "each alternative means theory"
and that it failed to do so. Littlejohn's argument is without merit. There is absolutely no
language in the felony-murder statute to suggest that the possible ways in which someone
is killed during the commission of, attempt to commit, or flight from an inherently
dangerous felony create alternative means of committing felony murder. See State v.
Brown, 295 Kan. 181, 189-90, 199-200, 284 P.3d 977 (2012) (The first step in an
alternative means analysis is determining whether the criminal statute supporting the
charged crime is an alternative means statute. If so, the elements instruction incorporating
the language of the statute should be tailored to include only those alternative means for
which there is some evidence.).

Next, Littlejohn contends that his conviction for aggravated robbery should be
reversed because in the complaint charging him with the crime, the State alleged that the
property taken from the person or presence of Collins was "keys, Hummer, and credit
cards." Littlejohn argues that the individual pieces of property alleged to have been taken
from Collins established either alternative means of committing aggravated robbery or
multiple acts which would warrant a unanimity instruction in connection to the jury
instruction on aggravated robbery. Based on the contention that his aggravated robbery
conviction should be reversed, Littlejohn also argues that his felony-murder and
aggravated kidnapping convictions should also be reversed because the aggravated
33



robbery charge served as an element for both the felony-murder and aggravated
kidnapping charges.

Like the felony-murder statute, the aggravated robbery statute contains absolutely
no language to suggest that taking individual pieces of property from the person or
presence of a victim establish alternative means of committing an aggravated robbery.
With regard to Littlejohn's multiple acts argument, there is no analysis within Littlejohn's
brief addressing whether the taking of the three pieces of property from Collins should be
considered unitary conduct or separate and distinct acts. See State v. Colston, 290 Kan.
952, 962, 235 P.3d 1234 (2010) (identifying factors for determining whether the acts at
issue occurred during a single course of conduct or whether the acts are separate and
distinct from each other). Again, an issue not briefed by the appellant is deemed waived
and abandoned. Holman, 295 Kan. at 125.

Regardless, the evidence presented at trial indicates that the three pieces of
property were taken from Collins during a single course of conduct—the takings occurred
at or near the same time; the takings occurred at the same location; there were no
intervening events between the takings; and there is no evidence to suggest that different
impulses motivated the individual takings. The aggravated robbery charge was not
supported by multiple acts requiring a unanimity instruction. See Colston, 290 Kan. at
962.

Finally, prior to oral arguments, Littlejohn filed a letter of additional authority
pursuant to Supreme Court Rule 6.09(b) (2013 Kan. Ct. R. Annot. 50), arguing that his
aggravated robbery conviction was based on the alternative means of taking property by
force or by threat of bodily harm to Collins and that insufficient evidence was presented
at trial showing that property was taken from Collins by threat of bodily harm.

34



Littlejohn did not raise this specific argument in his brief. Rule 6.09(b) letters are
reserved for citing significant relevant authorities not previously cited which come to a
party's attention after briefing. This court has previously held that an appellate court will
not consider new issues raised for the first time in a party's Rule 6.09(b) letter. See, e.g.,
State v. Tague, 296 Kan. 993, 1010-11, 298 P.3d 273 (2013); State v. Houston, 289 Kan.
252, Syl. ¶ 13, 213 P.3d 728 (2009) ("[Rule 6.09] was not intended to be, nor should it
be, used as yet another briefing opportunity.").

Littlejohn has failed to show that any of his convictions should be reversed due to
insufficient evidence.

CUMULATIVE ERROR

Littlejohn asserts that even if the issues that he has raised do not rise to the level of
reversible error individually, the cumulative effect of these errors operated to deny him a
fair trial, requiring reversal of his convictions.

Cumulative trial errors, when considered collectively, may require reversal of the
defendant's convictions when the totality of circumstances substantially prejudiced the
defendant and denied the defendant a fair trial. If the evidence is overwhelming against
the defendant, however, no prejudicial error may be found based upon this cumulative
error rule. Thompson v. State, 293 Kan. 704, 721, 270 P.3d 1089 (2011). Furthermore, a
single error cannot constitute cumulative error. State v. Haberlein, 296 Kan. 195, 212,
290 P.3d 640 (2012).

As shown from the facts stated above, the State presented overwhelming evidence
establishing Littlejohn's culpability for each crime he was found guilty of committing.
Furthermore, in our analysis of all the issues that Littlejohn raised on appeal, we only
35



found one that may have constituted error, though not reversible error: the failure to
instruct the jury on second-degree intentional murder. This one possible error cannot
constitute cumulative error. Littlejohn's cumulative error argument is without merit.

Affirmed.