State v. Marks

1



IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,289

STATE OF KANSAS,
Appellee,

v.

RICKEY MARKS,
Appellant.


SYLLABUS BY THE COURT

1.
Appellate courts apply a two-step analytical framework for prosecutorial
misconduct claims. First, the court determines whether the prosecutor's comments were
outside the wide latitude allowed prosecutors in discussing the evidence. If so, the court
next considers whether those comments prejudiced the jury against the defendant and
denied the defendant a fair trial.

2.
Although prosecutors are given wide latitude in the language and manner of
presentation during closing arguments, those arguments must still be consistent with the
evidence. If they are not, the first prong of the prosecutorial misconduct test is met and
the court must consider whether the misstatement of facts constitutes plain error.

3.
Appellate courts consider three factors in determining whether a prosecutor's
misstatement constitutes plain error requiring reversal: (a) whether the misconduct is
gross and flagrant; (b) whether the misconduct shows ill will on the prosecutor's part; and
2



(c) whether the error affected the defendant's substantial rights, meaning the error
affected the trial's outcome.

4.
When the defendant establishes an error of constitutional magnitude, it is the
State's burden, as the party benefitting from the error, to prove beyond a reasonable doubt
that the error did not affect the defendant's substantial rights.

5.
It is within a trial court's discretion whether to exclude evidence if its probative
value is substantially outweighed by the risk of unfair prejudice.

6.
A district court abuses its discretion when its action is: (a) arbitrary, fanciful, or
unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial
court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal
conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does
not support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based.

7.
Under the plain language of K.S.A. 22-3212 and K.S.A. 22-3213, the defendant is
entitled to personal copies of certain discovery upon request.

8.
K.S.A. 22-3212(e) provides a procedure for limiting access to sensitive
information.

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Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed April 19,
2013. Affirmed.

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

Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: Rickey Marks directly appeals his conviction for the first-degree
premeditated murder of his wife, arguing: (1) the prosecutor committed misconduct
during closing arguments; (2) the district court erred when it denied his motion in limine
to exclude evidence that his wife filed for divorce in the weeks prior to her murder; (3)
the Wyandotte County District Attorney's open file discovery policy violates K.S.A. 22-
3212 and K.S.A. 22-3213; and (4) cumulative error deprived him of a fair trial. We hold
the prosecutor misstated the law on premeditation and that Marks was entitled to copies
of the discovery under K.S.A. 22-3212 and K.S.A. 22-3213. Both errors were harmless in
this case, and we affirm his conviction.

FACTUAL AND PROCEDURAL HISTORY

On October 11, 2008, Rozeta Marks was stabbed eight times in her chest, arm, and
back while driving to a store with her husband, Rickey Marks. According to a medical
examiner who testified at trial, Rozeta's wounds were on the left side of her body,
indicating she was stabbed through the driver's side window. The fatal stab entered
between Rozeta's ribs and into her heart. Marks was ultimately charged with and
convicted of first-degree premeditated murder.
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At trial, Rozeta's friend Judith Williams testified that a few weeks before the
stabbing, Rozeta visited her in Tennessee. Williams said that during that visit Marks
called Rozeta approximately 60 times and accused her of infidelity. He also left
numerous threatening voicemails and text messages in which he said Rozeta must have
been scared of him and that she was "dead" when she returned.

Williams testified that Rozeta secretly filed for divorce during the Tennessee visit,
telling Williams that she did not want Marks to know. Rozeta left the divorce papers in
Tennessee so that Marks would not find them. After returning home, Rozeta sent
Williams a text message saying, "He dont believe that i'm getting a divorce. Keep
begging PLEASE DONT[.] GIVE ME ANOTHER CHANCE."

Before trial, Marks' attorney filed a motion in limine seeking to exclude evidence
that Rozeta filed for divorce shortly before her death. He conceded the divorce evidence
would be relevant if there was additional evidence that Marks knew Rozeta had filed but
claimed there was none and that any divorce evidence was therefore irrelevant and
extremely prejudicial. The district court denied Marks' motion, which he unsuccessfully
renewed on the morning of trial.

Sometime after Rozeta returned home, she and Marks drove to the house of one of
Marks' brothers, Reginald, to pick up some unused tools to return to a store. According to
Reginald's trial testimony, Marks did not act agitated or angry at the time, and Rozeta
waved at him from the car. Williams also testified that she spoke to Rozeta before the
stabbing and that Rozeta sounded "fine."

Reginald further testified that about 15 to 20 minutes after Marks and Rozeta left
his home, Marks' other brother, Stephen, yelled for him to dial 911. Stephen testified that
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he observed Rozeta stagger in the street, look "wobbly," and ultimately fall down.
Stephen said Rozeta told him she had been stabbed, and Stephen saw Marks drive off
"kind of fast" in Rozeta's car.

Several people testified at trial that shortly after the stabbing, Marks telephoned
them saying that he had stabbed Rozeta. One of them was Williams' husband in
Tennessee, who testified that Marks said, "I killed the bitch. . . . I stabbed her 20 times."
Marks was arrested later the day of the stabbing at a sandwich shop. One officer said
Marks had a contusion on his forehead from falling in the parking lot but did not have
any other noticeable injuries. Neither the car nor the murder weapon was ever recovered.

Marks testified in his own defense that he could not find the receipt for the tools,
which he would need to return them. He said once Rozeta learned he lost the receipt, a
heated argument began during which Rozeta became "irate" because she wanted the
money and Marks had a bad habit of losing receipts. Marks also testified that Rozeta
stopped the car and told him to get out and that "pissed [him] off" and he refused.

According to Marks, this was when Rozeta pulled a knife from under the car seat.
He testified that Rozeta raised the knife like she was going to stab him, and a "tussl[e]"
began during which he grabbed her hand and wrestled for the knife. Marks said Rozeta
"lunged" towards him and that was when "this happened." According to Marks, he
became upset and tearful after the stabbing. He said Rozeta got out of the car and started
walking down the street. Marks said he told her to get back in so they could go to the
hospital, but Rozeta refused. When she would not return, Marks said he got in the driver's
seat and drove away.

After retiring for deliberations, the jury submitted a question to the court, asking:
"While premeditation has no specific time frame is there a reasonable definition of
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'instantaneous'? In other words, if someone decides to act and then acts is that gap of time
sufficient to declare pre-med?" The judge replied: "Ladies and Gentlemen, I cannot give
you a better definition of premeditation than that contained in [the instruction]. Please re-
read the definition of premeditation in [the instruction]."

The jury convicted Marks of first-degree premeditated murder. He was sentenced
to life in prison with a minimum confinement of 25 years. This court has jurisdiction
under K.S.A. 2012 Supp. 22-3601 (life sentence; off-grid crime).

PROSECUTOR'S CONDUCT

During closing arguments, the prosecutor explained to the jury regarding
premeditation that "intent can be formed during the act itself." (Emphasis added.) But in
the district court's instructions for first-degree premeditated murder, second-degree
intentional murder, voluntary manslaughter, and involuntary manslaughter, the jury
received the standard PIK definition for premeditation as follows:

"Premeditation means to have thought over the matter beforehand, in other
words, to have formed the design or intent to kill before the act. Although there is no
specific time period required for premeditation, the concept of premeditation requires
more than the instantaneous, intentional act of taking another's life." (Emphasis added.)

Marks argues the prosecutor's comments to the jury about forming premeditation
"during the act itself" improperly eliminated the distinction between instantaneous
development of intent to kill, a standard Marks assigns to second-degree intentional
murder, and actual premeditation in first-degree murder cases. He says these statements
prejudiced his right to a fair trial.

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Standard of Review

Appellate review of prosecutorial misconduct claims involves a two-step process.
The appellate court first decides whether the comments were outside the wide latitude a
prosecutor is allowed in discussing evidence and, therefore, improper. Second, if there
was misconduct, the appellate court determines if reversal is required and must decide:
(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the
jurors' minds. State v. Raskie, 293 Kan. 906, 914, 269 P.3d 1268 (2012); State v.
Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011). None of these three factors is
individually controlling. Inkelaar, 293 Kan. at 427. If the defendant establishes
misconduct of a constitutional magnitude, the State, as the party benefitting from the
error, bears the burden of proving beyond a reasonable doubt that the error did not affect
the defendant's substantial rights. Raskie, 293 Kan. at 914.

Discussion

Our first step is to determine whether the prosecutor's comments were improper.
And while a prosecutor has wide latitude in discussing evidence, the remarks must
accurately reflect that evidence, accurately state the law, and cannot be intended to
inflame the passions or prejudices of the jury or divert the jury from its duty to decide the
case based on the evidence and controlling law. 293 Kan. at 917 (citing State v. Tosh, 278
Kan. 83, 90, 91 P.3d 1204 [2004]). The alleged prosecutorial misconduct occurred when
the prosecutor stated:

"If you don't want to consider evidence from before October 11th, then consider . . . the
way she died that day. Eight times. That's not an accident, people. Eight times. She gets it
8



here (indicating) and goes through into the top part of her arm. The doctor said her arm's
like this (indicating), goes all the way through and you've got to pull that out and that's
just one time, just one time. Then you've got to make the decision to do it again a second
time. She's cut on her left hand. Gotta make the decision to do a third time. He cuts her
again up in here (indicating). It goes through her arm again, all the way through. It goes
through the skin here, the tissue and comes out the other end, then you've got to pull it
out too, gotta pull it right back out. That's three. Then you've got to make a choice to do it
a fourth time. Right here (indicating), plunge it in, pull it out. Got to do it a fifth time
right in here (indicating), move your arm toward her again, pull it back. A sixth time right
here (indicating). Again, you're choosing to make that motion. You're thinking about it,
it's not accidental, you're not flailing it around. You're connecting right here by her heart
(indicating). Then you've got to choose to do it a [seventh] time right here (indicating),
the one that kills her, right in the chest to the hilt that one. Think about the effort to push
that through, to go through in between two ribs, cut that right ventricle of her heart, to the
hilt and then pulling it out and that's a conscious choice. That's a directed movement.
That is not an accident. You pull it back out and then you do it one more time, the eighth
time on the back of her neck which, ladies and gentlemen, she's facing him the whole
time. . . .

. . . .

". . . Focusing on only that day, that's not considering all the evidence and that's what
[defense counsel] wants you to do is focus on just that day. . . .

"However, if you do that, it still leads us to the same answer because that is intent
can be formed during the act itself. It can be at some point formed—at some point he
made a choice he was going to kill her that day. Eight stab wounds, that tells you what he
was thinking right there. There's nothing that can tell you better than that." (Emphasis
added.)

Marks argues it was a misstatement to claim premeditation could have been
formed "during the act itself" in the time it took to stab her eight times. He asks us to find
9



the prosecutor's statement that "intent can be formed during the act itself" is the same as
incorrectly suggesting that premeditation may be formed instantaneously. Marks also
argues the prosecutor misstated the evidence because there was nothing indicating Marks
stopped and contemplated each stab before it occurred.

In State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008), a case involving the
repeated stomping on the victim as she lay on her kitchen floor, the prosecutor said
during closing:

"'Premeditation can be formed between the first and second stomps, between the
second and third stomps, at any point during the stomping (attorney stomping). Okay.
The stomping, what is his desire? To kill his mother. Ultimately it boils down to what's
going on in the defendant's brain when he's stomping his mother to death. 15 stomps.'"

And on rebuttal the prosecutor further stated:

"'What we're saying is as he stomped, as he knocked her down, he had time to think. As
he kicked her in the head, he had time to think. As he stomped on her, he had time to
think. Again, time to think and again, time to think and if that's not enough, ladies and
gentlemen, you hear him on the tape walk away and then come back (attorney stomping)
in between saying things. Again he stomped. He came back and then stomped again. Do
you think he had time enough to think?'"

While acknowledging some prior decisions holding that premeditation cannot be
formed instantaneously, the Warledo court also recognized that multiple blows may
afford the defendant an opportunity to think about what he or she was doing, and that the
infliction of additional blows once the victim was already helpless could show
premeditation. Accordingly, the statement in that case was found to be consistent with
PIK instructions and Kansas precedent because the comments merely informed the jury
that the defendant could have developed the plan to commit murder once the fight started,
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as evidenced by the number of stomps and the 911 tape recording of Warledo telling the
victim she would die. 286 Kan. at 950.

Similarly, in State v. Anthony, 282 Kan. 201, 145 P.3d 1 (2006), a case in which
the victim was beaten repeatedly with an object, we held it was not misconduct when the
prosecutor stated:

"'And if you think about it, the two blows that actually killed David Carrington had to
occur at some point, they may have occurred last and David Carrington went to the
ground, but if they came last, then there is [sic] at least five blows before them. This
person is thinking about what they are doing. They know what they are doing. If those
two blows came first, then David Carrington is unconscious, defenseless on the ground,
and this person continues to beat him at least five more times. That's premeditation.'" 282
Kan. at 208.

The Anthony court concluded that the prosecutor's remarks simply pointed out that
the number and order of blows could have given the defendant the opportunity to think
about what he was doing, and that inflicting additional blows after the victim was
rendered helpless could constitute premeditation. 282 Kan. at 209.

In contrast, our decision in State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), a
case involving a victim killed by a rapidly fired gun, demonstrates when a prosecutor's
statement regarding the formation of premeditation is a misstatement. In Hall, there was
no evidence of interaction between Hall and the victim prior to the shooting. Moreover,
the evidence showed Hall fired three more shots in rapid succession. The prosecutor
argued that Hall could have formed premeditation after the first trigger pull because he
shot four times. We found it was error to argue that premeditation could be formed after
the first trigger pull because it suggested that premeditation could be formed
instantaneously—a notion we have rejected. 292 Kan. at 852.
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The clear difference between Hall on the one hand, and Warledo and Anthony on
the other, is that in Hall, the homicidal acts occurred in such rapid succession—the time
between the first trigger pull and the final trigger pull—that we determined the time
frame was essentially instantaneous. Hall, 292 Kan. at 852. In Warledo and Anthony, the
evidence indicated a sufficient period between the beginning of the altercation and the
last stomp or blow for the defendant to form premeditation before the ultimate homicidal
act, yet during the same period of physical violence.

Marks' case is more analogous to Warledo and Anthony than it is to Hall because
stabbing someone with a knife eight times is not instantaneous like rapid gunfire. And if
the jury believed the coroner's testimony that Rozeta was likely stabbed through the
driver's side window because the wounds were on her left side, then that offered
additional moments to form premeditation.

But it is unclear from the prosecutor's remarks what was meant by "during the act
itself." And without that clarity, we conclude that the prosecutor confused the formation
of premeditation from what was instructed given the particular fact pattern in this case
and the conflict in the evidence. We need not decide, however, whether this would be
sufficient to constitute prosecutorial error by itself because another factor adds to our
analysis.

Marks notes that the deputy coroner did not testify how quickly the stabbings
occurred, though he did say the fatal stab wound would not have killed Rozeta instantly.
The coroner labeled the stab wounds A, B, C, etc., to keep track of them but made clear
these labels were arbitrary and did not indicate the order in which the stabs occurred. But
the prosecutor nevertheless discussed what she believed was the actual sequence of the
wounds and did so without medical evidence to support the argument. We hold that
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within the context of the evidence, the prosecutor's variance from the language in the
instructions given to the jury, coupled with her remarks regarding the sequencing of the
stab wounds, crossed the line into prosecutorial misconduct. With this holding we must
next determine whether the error requires reversal.

We consider three factors in determining whether a prosecutor's misstatement
constitutes plain error requiring reversal: (1) whether the misconduct is gross and
flagrant; (2) whether the misconduct shows ill will on the prosecutor's part; and (3)
whether the error affected the defendant's substantial rights, meaning the error affected
the trial's outcome. Hall, 292 Kan. 841, Syl. ¶ 14. The State, as the party benefitting from
this error, bears the burden of demonstrating beyond a reasonable doubt that the error did
not affect the trial's outcome in light of the entire record. State v. Ward, 292 Kan. 541,
Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).

At the outset, we find no evidence suggesting the prosecutor's conduct was gross
and flagrant or exhibited ill will. In addition, we hold that the State has met its burden to
show beyond a reasonable doubt that the conduct did not affect the trial's outcome
because the State presented more than sufficient evidence of premeditation.

The State correctly points out a list of factors this court has approved when
considering whether there was premeditation, including: (1) the nature of the weapon
used, (2) the 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. See State v.
Cosby, 293 Kan. 121, 134, 262 P.3d 285 (2011); see also Hall, 292 Kan. at 854-56
(misstatement not reversible error where other evidence at trial showed premeditation).
Not all factors must be present before premeditation can be inferred. See State v. Morton,
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277 Kan. 575, 581-83, 86 P.3d 535 (2004) (evidence to support second and third factors
sufficient in finding premeditation).

In Marks' case, the State presented sufficient evidence of premeditation under two
different theories. The first was that Marks premeditated Rozeta's murder before the
stabbing occurred. This was demonstrated at trial by the substantial evidence showing
threatening texts and phone calls to Rozeta while she was visiting her friend in
Tennessee, just days before the stabbing, including a text from Marks in which he told
Rozeta she was "dead" when she returned.

Under the second theory, the State presented evidence that Marks formed
premeditation to kill Rozeta between the eight stabs. Both the deputy coroner and Marks
said the weapon used was a knife, which is a deadly weapon. And after the killing, Marks
made numerous phone calls to friends and family members, including telling Williams'
husband, "[S]ee what you made me do to that bitch?" And the fact that the car and knife
were never recovered is indicative of a plan to hide evidence. When asked at trial what
happened to the car, Marks said only that he did not know but remembered what street he
left it on and that he took the key with him when he got out of it. See State v. Doyle, 272
Kan. 1157, 1162, 38 P.3d 650 (2002) (premeditation inferred when evidence showed,
among other things, defendant removed the license plate on his car before driving to
victim's home). Finally, there were multiple stab wounds to Rozeta's body, including four
in her chest.

We note also that the jury asked the court for a definition of "instantaneous" and
whether the gap of time between a person's decision to act and the actual act is sufficient
for premeditation. The dissent contends this question shows that the jury did not
understand the meaning of premeditation. But the jury was instructed that premeditation
means "to have thought over the matter beforehand . . . to have formed the design or
14



intent to kill before the act." This definition squares with the State's first theory, which
was that Marks premeditated Rozeta's murder while she was away in Tennessee.

Looking at the record as a whole, the trial's outcome would not be different if the
misstatements were omitted. There was sufficient evidence showing a strong inference
that Rozeta's stabbing was premeditated. And the jury was properly instructed on the law
regarding premeditation and was also instructed that arguments of counsel were not
evidence. As a result, the prosecutor's misstatements here do not warrant reversal.

MOTION IN LIMINE

Marks next argues it was prejudicial error for the district court to deny his motion
in limine to exclude evidence that Rozeta filed for divorce shortly before her death. In
that motion, Marks argued that because there was no evidence he actually knew about the
filing, the evidence was irrelevant to the issue of motive. Marks further argued that even
if the evidence was relevant, its probative value was substantially outweighed by its
prejudicial impact. Marks eventually lodged a continuing objection to evidence
discussing the divorce filing.

Standard of Review

When the admission or exclusion of evidence is challenged on appeal, the first
inquiry is relevance. State v. McMullen, 290 Kan. 1, 7, 221 P.3d 92 (2009). Evidence is
relevant when it has "any tendency in reason to prove any material fact." K.S.A. 60-
401(b). This encompasses whether the evidence is probative and whether it is material.
State v. Martinez, 290 Kan. 992, 1009, 236 P.3d 481 (2010) (citing State v. Dixon, 289
Kan. 46, 69, 209 P.3d 675 [2009]); State v. Henson, 287 Kan. 574, 578 197 P.3d 456
(2008). Probative evidence furnishes, establishes, or contributes toward proof. Martinez,
15



290 Kan. at 1009. The decision as to whether evidence is probative is reviewed for abuse
of discretion. Dixon, 289 Kan. at 69.

Material evidence is that which tends to establish a fact that is at issue and is
significant under the substantive law of the case. State v. Reid, 286 Kan. 494, 505, 186
P.3d 713 (2008). The determination whether evidence is material is reviewed under a de
novo standard. Martinez, 290 Kan. at 1009.

If relevance is established, the evidentiary rules governing admission or exclusion
of evidence are applied as a matter of law or in the exercise of judicial discretion,
depending on the applicable rule. If the adequacy of the legal basis is questioned, we
review the issue de novo. 290 Kan. at 1009 (citing Dixon, 289 Kan. at 70); State v.
Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).

Discussion

The evidence of Rozeta's divorce filing was both probative and material. The State
produced numerous text messages from Marks to Rozeta asking her to "tell the truth[]"
about whether she was really getting a divorce. It also produced text messages from
Rozeta to her friend Williams that said, "He dont believe that i'm getting a divorce. Keep
begging PLEASE DONT[.] GIVE ME ANOTHER CHANCE." This permits a
reasonable conclusion that Marks knew Rozeta had filed for divorce.

In addition, Rozeta's divorce filing was material in that it tended to establish
Mark's motive and intent to commit murder. See State v. Hughes, 286 Kan. 1010, 1022,
191 P.3d 268 (2008) (Although motive is not an element of murder, the State may
nevertheless admit evidence of motive to explain why the defendant may have committed
16



the crime.); State v. Drach, 268 Kan. 636, 649, 1 P.3d 864 (2000) (Evidence of marital
discord is competent as bearing on a spouse defendant's motive and intent.).

When Rozeta returned home from Tennessee, the text messages exchanged
between her and Williams, as well as between Rozeta and Marks, support a finding that
Marks learned of the divorce filing. Accordingly, evidence of the divorce filing would
tend to establish motive and intent—both of which were at issue and significant under the
substantive law applicable to the crime. See K.S.A. 21-3401(a)(1); Hughes, 286 Kan. at
1022. For these reasons, we hold that the evidence of Rozeta's divorce filing was
relevant.

Marks argues next that even if the evidence of the divorce filing was relevant and
otherwise admissible, it still should have been excluded because it was far more
prejudicial than probative. This argument is similarly grounded in Marks' contention that
there was no evidence he knew Rozeta had filed for divorce.

Kansas law favors the admission of relevant evidence. Generally, all relevant
evidence is admissible, unless excluded by statute. K.S.A. 60-407(f); State v. Miller, 284
Kan. 682, 690, 163 P.3d 267 (2007). And it is within a trial court's discretion whether to
exclude evidence if its probative value is substantially outweighed by the risk of unfair
prejudice. K.S.A. 60-445; State v. Shadden, 290 Kan. 803, 817-18, 235 P.3d 436 (2010);
see also State v. Leitner, 272 Kan. 398, 415, 34 P.3d 42 (2001) (citing State v. Davis, 213
Kan. 54, 57, 515 P.2d 802 [1973]) (discussing statute's application to probative versus
prejudicial). A district court abuses its discretion when its action is: (1) arbitrary,
fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted
by the trial court; (2) based on an error of law, i.e., if the discretion is guided by an
erroneous legal conclusion; or (3) based on an error of fact, i.e., if substantial competent
evidence does not support a factual finding on which a prerequisite conclusion of law or
17



the exercise of discretion is based. State v. Phillips, 295 Kan. 929, Syl. ¶ 10, 287 P.3d
245 (2012).

Along with the telephone calls, text messages, voicemails, and other evidence,
Rozeta's divorce filing showed the couple had a turbulent marriage, with an escalating
pattern of threats and violence. Evidence that Marks seemed to know about the filing was
sufficiently probative to explain his intent to kill Rozeta along with a motive for doing so.
Moreover, the prejudicial effect, if any, was minimal in light of all the evidence admitted.

Having concluded that the evidence of Rozeta's divorce filing was relevant and
more probative than prejudicial, we hold that the district court did not abuse its discretion
in denying the motion in limine and admitting testimony regarding the divorce filing.

WYANDOTTE DISTRICT ATTORNEY'S OPEN FILE POLICY

Marks next argues the open file policy of the Wyandotte County District
Attorney's Office for discovery in criminal cases violates K.S.A. 22-3212 and K.S.A. 22-
3213, which govern discovery, demands for production, and the production of witness
statements. Marks claims these statutes compel the State to provide him personal copies
of discovery. He argues further that because he was not provided with these copies, the
State violated his constitutional right to assist in his defense.

In the district court, Marks filed a motion to produce copies of witness statements
taken from those who testified at the preliminary hearing, along with scientific test
results, cell phone records, photographs, video/audio tapes, voicemails or other
recordings, testimony transcripts of the defendant or anyone else, all exhibits the State
intended to use at trial, his criminal record, the criminal record of all witnesses, and all
exculpatory evidence. This motion did not reference any authority for the production and
18



did not specify that it sought additional copies for Marks' personal use—only that copies
were requested "for [the] defendant."

In its written answer to Marks' discovery motion, the State explained its open file
policy as follows:

"The Wyandotte County District Attorney's Office has an open file policy. The entire
case file is routinely provided to defense counsel prior to preliminary hearing. This policy
allows defense counsel to obtain the case file earlier than contemplated by the discovery
statute. This policy allows defense counsel to obtain parts of the case file that may not
ever be discoverable pursuant to the discovery statute. The policy is contingent upon the
file not being provided to the defendant personally. There are no stipulations against the
defendant being able to view the case file in person, with his or her attorney."

The State's response explained that its goal was to protect "sensitive" personal
identification information of various witnesses, reasoning that a defendant's access to this
material could result in financial and personal safety risks to witnesses.

At a hearing on the motion, the district court denied Marks' request, articulating
that defense counsel had been provided a copy of the district attorney's entire discovery
file and that Marks was free to review that discovery with counsel and take notes. The
district court also noted the open file policy was "more generous" than the statute
requires, though it did not explain which discovery statute it was referring to.

Marks challenges the district court's decision through both a brief filed by his
appellate counsel and one Marks submitted pro se. He frames the issue pro se as a right to
"review or study" the State's discovery. But the district court's decision addressed
whether Marks could review discovery with his attorney, and this was confirmed with
Marks' counsel. There is no claim this review did not occur. With the issue raised pro se
19



resolved in Marks' favor by the district court, our analysis focuses on counsel's arguments
regarding whether Marks was entitled to personal copies.

Standard of Review

The claim that Marks was entitled to personal copies of certain discovery under
K.S.A. 22-3212 and K.S.A. 22-3213 raises a question of statutory interpretation. This is a
question of law over which appellate courts have unlimited review. State v. Arnett, 290
Kan. 41, 47, 223 P.3d 780 (2010).

When interpreting a statute, an appellate court's first task is to ascertain legislative
intent through an analysis of the language employed, giving ordinary words their
ordinary meaning. State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). When a statute
is plain and unambiguous, we do not attempt to determine the intent behind it. 294 Kan.
at 92. As a general rule, criminal statutes must be strictly construed so that any
reasonable doubt about the meaning is decided in favor of the accused. 294 Kan. at 96.
But this is subordinate to the rule that judicial interpretation must be reasonable and
sensible to achieve legislative intent. If the statute's language or text is unclear or
ambiguous, the appellate court uses canons of construction or legislative history to
construe the legislature's intent. State v. Trautloff, 289 Kan. 793, 796-97, 217 P.3d 15
(2009).

Discussion

At the time of Marks' discovery request, K.S.A. 22-3212 provided in pertinent
part:

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"(a) Upon request, the prosecuting attorney shall permit the defendant to inspect
and copy or photograph the following, if relevant: (1) Written or recorded statements or
confessions made by the defendant, or copies thereof, which are or have been in the
possession, custody or control of the prosecution, the existence of which is known, or by
the exercise of due diligence may become known, to the prosecuting attorney; (2) results
or reports of physical or mental examinations, and of scientific tests or experiments made
in connection with the particular case, or copies thereof, the existence of which is known,
or by the exercise of due diligence may become known, to the prosecuting attorney; (3)
recorded testimony of the defendant before a grand jury or at an inquisition; and (4)
memoranda of any oral confession made by the defendant and a list of the witnesses to
such confession, the existence of which is known, or by the exercise of due diligence may
become known to the prosecuting attorney.

"(b) Upon request, the prosecuting attorney shall permit the defendant to inspect
and copy or photograph books, papers, documents, tangible objects, buildings or places,
or copies, or portions thereof, which are or have been within the possession, custody or
control of the prosecution, and which are material to the case and will not place an
unreasonable burden upon the prosecution." (Emphasis added.)

K.S.A. 22-3212(d) provided at the time of the discovery motion that "[t]he
prosecuting attorney and the defendant shall cooperate in discovery and reach agreement
on the time, place and manner of making the discovery and inspection permitted, so as to
avoid the necessity for court intervention." (Emphasis added.) And K.S.A. 22-3212(e)
provided for district court oversight regarding the extent, manner, and method of
discovery, stating: "Upon a sufficient showing the court may at any time order that the
discovery or inspection be denied, restricted or deferred or make such other order as is
appropriate." K.S.A. 22-3212(e). That subsection then establishes a procedure for that
review, which was not followed in this case. See K.S.A. 22-3212(e). Notably, the
legislature amended K.S.A. 22-3212 since Marks' trial, but the parties do not argue those
amendments impact our analysis. See L. 2012, ch. 143, sec. 1; L. 2011, ch. 30, sec. 125;
L. 2010, ch. 30, sec. 1..
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As for K.S.A. 22-3213, which is unchanged, it provides that after a witness at a
preliminary hearing or trial testifies on direct examination, the court shall, on the
defendant's motion, order the prosecution to produce any witness statement in the
prosecution's possession relating to the subject matter on which that witness testified.
And as to any such statement, "the court shall order it to be delivered directly to the
defendant for his examination and use." (Emphasis added.) K.S.A. 22-3213(1)-(2).

Neither K.S.A. 22-3212 nor K.S.A. 22-3213 leave room for interpretation as to
who "the defendant" is because the meaning can be readily ascertained by the plain
language—the defendant is the person who is charged with the crime. And this
interpretation is bolstered by noting the contrast in the statutes between the manner of
production to the respective parties. One provision requires that when the defendant must
produce discovery to the prosecution that discovery is to be produced for "the attorney
for the prosecution" to inspect and copy. (Emphasis added.) K.S.A. 22-3212(c).

But a notion that referencing "the defendant" universally encompasses defense
counsel is dispelled by the language in a similar statute, K.S.A. 22-2302(2), which
concerns production of the affidavit used in support of probable cause. It states:

"Affidavits or sworn testimony in support of the probable cause requirement of
this section shall not be made available for examination without a written order of the
court, except that such affidavits or testimony when requested shall be made available to
the defendant or the defendant's counsel for such disposition as either may desire."
(Emphasis added.)

While K.S.A. 22-2302 (2) is not at issue, its language indicates the legislature
recognized the difference between the defendant and defense counsel by explicitly stating
that each is entitled to a copy of the affidavit. See also State v. Thomas, 273 Kan. 750,
22



754, 46 P.3d 543 (2002) ("trial court's ruling that a represented defendant can only have
access to the documents [identified in K.S.A. 22-2302(2)] through his or her counsel is
illogical in light of the statutory language").

K.S.A. 22-3212 and K.S.A. 22-3213 unambiguously require disclosure to the
defendant. The district court erred to the extent it held that K.S.A. 22-3212 and K.S.A.
22-3213 do not authorize a defendant to have personal copies of discovery and witness
statements. We recognize the importance of protecting sensitive information, but we note
K.S.A. 22-3212(e) provides a procedure for that very issue. The open file policy simply
placed a larger band-aid over that problem than was necessary or permitted by statute.
We must decide next whether that error was harmless.

If an error infringes upon a right guaranteed by the United States Constitution, we
must be convinced beyond a reasonable doubt that the error did not affect the outcome in
light of the entire record. State v. Ward, 292 Kan. 541, 569-70, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012). If the error does not infringe upon a constitutional right,
we apply the harmless error analysis of K.S.A. 60-261 and K.S.A. 60-2105 to determine
whether there is a reasonable probability that the error affected the trial's outcome. State
v. McCullough, 293 Kan. 970, 981, 270 P.3d 1142 (2012). The State, as the party
benefitting from the error, bears the burden of proof in either instance. 293 Kan. at 983.

Marks claims his inability to retain personal copies of discovery and witness
statements infringed on his constitutional right to meaningfully participate in his own
defense. He does not articulate how his participation was actually impeded when he
otherwise had the opportunity to review the information with his attorney, nor does he
cite any authority which would support his theory of constitutional infringement.

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The Sixth Amendment to the United States Constitution guarantees in "all criminal
prosecutions" that "the accused shall enjoy the right . . . to have the Assistance of
Counsel for his defence." The Kansas Constitution Bill of Rights, § 10, provides in
pertinent part: "In all prosecutions, the accused shall be allowed to appear and defend in
person, or by counsel . . . ." A criminal defendant is entitled to the "assistance of counsel"
and, if indigent, the defendant may be appointed counsel, who is to represent the client,
inform him or her fully of the crime charged and the possible penalty, and "fully and
fairly represent the defendant" in the proceeding. K.S.A. 22-4503.

But, "[t]here is no general constitutional right to discovery in a criminal case."
Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 51 L. Ed. 2d 30 (1977). A
defendant's right to assistance in his or her defense does not translate to a constitutional
right to personal copies of discovery, particularly when that discovery was already
provided to his or her attorney. See United States v. Shrake, 515 F.3d 743, 745 (7th Cir.
2008) (defendants not constitutionally entitled to discovery; federal statute limiting
pretrial discovery constitutional); People v. Davison, 292 Ill. App. 3d 981, 988, 227 Ill.
Dec. 75, 686 N.E.2d 1231 (1997) (defendant has no constitutional right to read discovery
materials; whether to provide personal copies of discovery to defendant is a matter left to
trial counsel's discretion).

This court has previously declined to find a constitutional violation when a
defendant claimed a discovery violation. See, e.g., State v. Deavers, 252 Kan. 149, 158,
843 P.2d 695 (1992) (no constitutional violation when requested discovery files did not
contain information that would have assisted the defense), cert. denied 508 U.S. 978
(1993). Marks' contention is similar to that made in Deavers because Marks has not made
any viable argument regarding how his personal retention of discovery and witness
statements would have assisted his defense. Stated another way, we are unable to discern
how Marks' defense was or could have been impaired by the district court's error. In
24



addition, the district court's order did not prevent Marks from reviewing and studying the
discovery and witness statements. To the contrary, the district court instructed counsel to
allow Marks to review the requested materials and confirmed that those instructions
would be followed. Specifically, the record reflects:

"[The Court]: . . . [H]ere's what my ruling is going to be: Number one, that
[defense counsel] can provide to Mr. Marks—can show Mr. Marks any document that he
has in terms of discovery, that Mr. Marks can look at those documents, he can touch
those documents and Mr. Marks can take any notes that he wants to from those
documents in preparation for trial. But in terms of photocopying those documents or
otherwise leaving . . . the discovery documents with Mr. Marks in the jail after [defense
counsel] has ceased a meeting, court is going to order that that is not going to be the case
in this particular situation.

"So, Mr. Marks, you're going to have access to all those documents, you can take
whatever notes that you feel is beneficial to you that you want to remember from those
documents . . . ."

We are convinced that the district court's refusal to allow Marks to retain personal
copies of discovery and witness statements did not affect a constitutional right.
Accordingly, we apply the harmless error analysis of K.S.A. 60-261 and K.S.A. 60-2105
to determine whether there is a reasonable probability that the error affected the trial's
outcome. McCullough, 293 Kan. at 981. And on that basis, we hold the error was
harmless.

Marks' attorney was provided with discovery in accordance with the Wyandotte
County District Attorney's open file policy, which, as the district court noted, is more
generous than the discovery statutes require and arguably allows the defense to perform
more thorough trial preparation. There is no allegation Marks' defense was compromised
due to his inability to obtain copies of discovery or that counsel failed to review that
25



discovery with Marks. Rather, Marks was permitted to review all discovery information
and take notes if he chose to do so. Marks' counsel informed the court that he would
allow Marks to review all the discovery information, and there is no suggestion that he
did not do that. Finally, in viewing the entire record, we cannot discern any impact on the
proceedings. Accordingly, we hold there is no reasonable probability the district court's
error in interpreting K.S.A. 22-3212 and K.S.A. 22-3213 affected the trial's outcome.

CUMULATIVE ERROR

Marks asserts that the cumulative error doctrine necessitates reversal. We have
identified two errors—the prosecutor's misstatement about premeditation and the district
court's interpretation of the discovery statutes, K.S.A. 22-3213 and K.S.A. 22-3212. The
test for cumulative error is "'whether the totality of circumstances substantially prejudiced
the defendant and denied the defendant a fair trial. No prejudicial error may be found
upon this cumulative effect rule, however, if the evidence is overwhelming against the
defendant.' [Citation omitted.]" See State v. Edwards, 291 Kan. 532, 553, 243 P.3d 683
(2010); State v. Foster, 290 Kan. 696, 726, 233 P.3d 265 (2010).

The identified errors do not overtake the strength of the evidence against Marks.
The evidence of his guilt was overwhelming based in significant part on his own
statements to Rozeta, friends, and family. There is no cumulative error.

Affirmed.

* * *

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JOHNSON, J., dissenting: I respectfully dissent from the majority's decision on the
prosecutorial misconduct issue relating to premeditation, in which the majority holds that
the prosecutorial misconduct is not reversible error. I would reverse.

First, notwithstanding its majority view status in this State, I continue to reject the
notion that a person can premeditate a murder while committing the murder. In my view,
concurrent premeditation is an oxymoronic concept that obliterates the distinguishing
feature of first-degree premeditated murder. See State v. Appleby, 289 Kan. 1017, 1074-
75, 221 P.3d 525 (2009) (Johnson, J., concurring in part and dissenting in part)
(premeditation contemplates that the matter be thought over before commencement of
homicidal conduct); State v. Warledo, 286 Kan. 927, 956, 190 P.3d 937 (2008) (Johnson,
J., concurring) (premeditation requires having thought the matter over beforehand;
"beforehand" must mean prior to commencing the death-causing act).

More specifically in this case, allowing the prosecutor to argue that a premeditated
intent to kill "can be formed during the act itself" directly contradicted the plain language
of the jury instruction given in this case, which told the jury that premeditation means "to
have formed the design or intent to kill before the act." (Emphasis added.) To me,
arguing that the formation of an intent to kill during the act fulfills the legal requirement
that the intent to kill must be formed before the act is unequivocally erroneous, regardless
of the context.

Further, the instruction defining premeditation cautioned the jury that "the concept
of premeditation requires more than the instantaneous, intentional act of taking another's
life." Consequently, the jury had to struggle with the nonsensically confusing task of how
to equate "during" with "before," while excluding "instantaneous." It is not surprising,
then, that the jurors in this case were apparently befuddled, as indicated by their request
for a "reasonable definition of 'instantaneous'" and their question as to whether "if
27



someone decides to act and then acts is that gap of time sufficient to declare pre-med?"
The trial court answered the question by instructing the jury to re-read the instructional
definition of premeditation but did not clarify that the jury could disregard the
prosecutor's argument on how the jury was to apply that definition to the facts of this
case. The majority's pointing out that one of the prosecutor's theories of premeditation
may have comported with the plain language of the jury instruction does not answer the
question of whether the jury was confused by the prosecutor's other theory of
premeditation which directly contradicted the plain language of the premeditation
instruction. I can have no confidence in a jury's conviction for premeditated murder when
I have no confidence that the jury knew the meaning of "premeditated."

Next, I am not persuaded that State v. Hall, 292 Kan. 841, 257 P.3d 272 (2011), is
distinguishable from Warledo and this case solely on the basis of the time necessary to
complete the homicidal conduct, i.e., that Hall could fire four successive shots from a
handgun faster than Warledo could stomp his mother to death or Marks could stab his
wife eight times. I submit that a human brain can form thoughts faster than the human
body can translate those thoughts into action, and that Hall's finger would not have pulled
the handgun's trigger the second, third, and fourth time without being told to do so by
Hall's brain. I further submit that a person's thought process during an adrenaline-flooded,
life-endangering crisis does not operate in the thoughtful, contemplative manner
suggested by some of our prior cases. Here, for instance, the apparently random delivery
of multiple stabs to nonvital locations on the victim's extremities indicates extreme rage
more than considered behavior.

Perhaps we should be guided by our double jeopardy jurisprudence, where we
analyze multiplicity by first determining whether the convictions arise from the same
conduct. See State v. Schoonover, 281 Kan. 453, Syl. ¶ 15, 133 P.3d 48 (2006). To
determine whether a defendant's acts constituted unitary conduct, we look at such factors
28



as whether the acts occur at the same time and at the same location; whether the acts were
separated by an intervening event; and whether some of the conduct was motivated by a
fresh impulse. 281 Kan. 453, Syl. ¶ 16. I submit that we would not have allowed Marks
to be convicted of seven additional counts of aggravated battery for the nonfatal stab
wounds because we would find an absence of a fresh impulse for the multiple acts
occurring at the same time and the same place. Yet, the majority view would allow him to
form a fresh intent during the incident, even where no fresh impulse exists. I find that
logic untenable. The crime of premeditated murder should be reserved for killings that
are calmly planned or designed prior to the commencement of the murderous act, i.e.,
murder in cold blood, rather than applied to crimes of passion, regardless of the amount
of time that may be consumed by the killer's rage.

Nevertheless, I do agree with the majority's determination that the prosecutor's
narrative, giving a blow-by-blow description of the stabbing incident, was not supported
by the actual evidence the State presented at trial. The prosecutor's story related that the
defendant methodically and deliberately stabbed the victim five or six times in various
locations on her arms and hands before delivering the fatal stab to the chest, followed by
one last stab to the neck. The prosecutor repeatedly emphasized the obvious fact that the
stabbing was not accidental; arbitrarily declared that the defendant was not "flailing [the
knife] around"; and unjustifiably suggested that there was a pause between stabs which
allowed the defendant to "make the decision to do it again." But the coroner did not
establish the order in which the victim's stab wounds were inflicted or the rapidity or
precision with which they were delivered. Thus, while the prosecutor's dramatization
served nicely to support the State's theory of concurrent premeditation, it impermissibly
argued facts not in evidence. Obviously, the State's suggestion that Marks formed the
intent to kill during the act of killing is not nearly so compelling if the fatal blow to the
chest was the first stab he delivered. In that event, the killing would be more closely akin
to "instantaneous," and the time it took to deliver the subsequent, superfluous, nonfatal
29



stabs would only have permitted the formation of retroactive premeditation, which is
even more ludicrous than concurrent premeditation.

But the bottom line is that, even if I were to surrender to the theory of concurrent
premeditation, I could not excuse the prosecutor's arguing facts not in evidence in this
case. This was not a slip of the tongue or an innocuous memory lapse. The prosecutor
created her own scenario, unsupported by the facts, in order to present a better argument
in support of the State's theory of the defendant's culpability for premeditation.
Attempting to convict a person of a crime based on made-up facts is gross and flagrant
conduct, if it is anything. Such conduct also has to suggest some level of ill will toward
the defendant. I suspect that most, if not all, litigators wish they could manufacture better
facts for closing argument, but they understand that justice does not permit that ploy.

Finally, I cannot view the evidence of premeditation in this case as so
overwhelming as to render the error harmless. The majority contends that the State
presented sufficient evidence of premeditation under two theories: (1) that Marks
premeditated the murder before the act of killing, as evidenced by his threatening texts
and telephone calls while the victim was in Tennessee; and (2) that "Marks formed
premeditation to kill [the victim] between the eight stabs." The majority then points out
that the definition of premeditation contained in the jury instructions—that the design or
intent to kill must be formed before the act of killing—squares with the State's first
theory, i.e., "that Marks premeditated [the victim's] murder while she was away in
Tennessee." The majority then declares that "[t]here was sufficient evidence showing a
strong inference that [the victim's] stabbing was premeditated." My disagreement with
the majority's assessment of the strength of the premeditation evidence is not as important
as my disagreement with the evidentiary test that the majority apparently applies.

30



As I read the majority opinion, it addresses a sufficiency of the evidence question,
i.e., whether a rational jury could find the existence of the premeditation element, beyond
a reasonable doubt, from the evidence presented at trial and from all reasonable
inferences that can be drawn from that evidence. But that is not the question presented
here. We are considering the third factor of the second step of the prosecutorial
misconduct analysis: "'whether the evidence against the defendant is of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of the jurors.'" State v. McCaslin, 291 Kan. 697, 715-16, 245 P.3d 1030 (2011) (quoting
State v. Bryant, 285 Kan. 970, Syl. ¶ 2, 179 P.3d 1122 [2008]).

The evidence that the majority finds compelling on the first theory—the threats
sent to Tennessee—is neither direct nor overwhelming. The most that can be read into the
Tennessee texts is that Marks was thinking about killing his wife when she returned from
Tennessee. That did not happen. In fact, after the victim returned from Tennessee, she
told her Tennessee friend that Marks was begging her not to divorce him and to give him
another chance. There has to be some causal connection between the premeditation and
the act of killing. In other words, "the matter" which must be thought over beforehand is
the act of murder that actually occurred, not some general homicidal thoughts in the past
or some earlier design or plan to kill that was abandoned in favor of reconciliation.

Granted, evidence that Marks had previously verbalized a threat to kill his wife
may support some inference that he once again premeditated murder specifically with
respect to the stabbing incident. Moreover, that would be a jury question. But we can say
that the evidence of premeditation of this particular killing is certainly not overwhelming,
especially in the face of the testimony of the defendant's brother, who saw the defendant
and victim just minutes before the stabbing. The brother described the couple as
appearing "normal" at that time and getting along; the brother did not think the defendant
was agitated or angry. The victim waited in the car while the defendant picked up some
31



tools at the brother's house, and the victim waived to the brother. The Tennessee friend
corroborated that tranquility, opining that the victim sounded "fine" when the friend
spoke to her just before the stabbing. The evidence that one moment the defendant and
the victim are normal and getting along and the next moment the victim is staggering
down the street with eight stab wounds is just as indicative of a sudden quarrel as a
premeditated killing.

Further, the majority misdirects our inquiry by focusing on the State's first theory
of premeditation upon which the majority found no prosecutorial misconduct. We should
be looking at the impact of the prosecutor's misconduct which the majority found to be
erroneous in this case, i.e., arguing facts not in evidence to prove that the intent was
formed during the act. The inquiry is whether that misconduct was likely to have had
little weight in the minds of the jurors. That inquiry is simplified in this case by the jury's
questions to the trial court, which make it abundantly clear that premeditation was
weighing heavily on the jury's collective mind. But even without the jury questions, I
could not declare harmlessness where the prosecutor told the jury a make-believe story to
support a theory of premeditation that directly contradicted the plain language of the jury
instruction definition of premeditation. I would reverse and give Marks a fair trial with a
jury that is properly led to understand the concept of premeditation.

MORITZ, J., joins in foregoing dissent.