State v. McMillan

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No. 101,846

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JAMES CHARLIE MCMILLAN, II,
Appellant.


SYLLABUS BY THE COURT

A prosecutor commits misconduct when he or she tells jurors to consider what
they feel in their hearts when determining whether the State has met its burden to prove
the defendant guilty beyond a reasonable doubt. On the facts of this case, however, that
error did not result in prejudice to the defendant.

Appeal from Dickinson District Court; BENJAMIN J. SEXTON, judge. Opinion filed November 12,
2010. Affirmed.

Matthew J. Edge, of Kansas Appellate Defender Office, for appellant.

Keith D. Hoffman, county attorney, Daryl E. Hawkins, assistant county attorney, and Steve Six,
attorney general, for appellee.

Before MALONE, P.J., CAPLINGER and LEBEN, JJ.

LEBEN, J.: James McMillan's neighbor, Milton Jamison, was found in Jamison's
mobile home, lying in a pool of blood with 56 knife wounds all over his body. Jamison
and McMillan had played dominoes and drunk whiskey at Jamison's home the night

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before. McMillan told the police that he went home that night and had returned in the
morning to find Jamison dead. McMillan had testified that he checked Jamison's body for
vital signs, but McMillan was covered with more blood than would be transferred
through the casual contact of checking vitals. He also had a bloody pocketknife in his
pants, which the coroner concluded could have caused the wounds. A search warrant
executed in McMillan's home later that day found items that tested positive for marijuana
in a locked box under McMillan's bed. A jury convicted McMillan of intentional second-
degree murder, possession of drug paraphernalia, and possession of marijuana. McMillan
claims on appeal that the State committed prosecutorial misconduct and that the district
court committed reversible error in six ways through his trial and at sentencing.

We will discuss McMillan's claims in detail but will first summarize our rulings.
After review of the arguments and the trial transcript, we have concluded that the State
did not commit prosecutorial misconduct when the prosecutor referenced the Virginia
Tech, Columbine, and Kennedy shootings. He did so as examples to show that the State
didn't need to prove motive, not to inflame the jury. And although the prosecutor's
discussion of the reasonable-doubt standard was improper, it was not prejudicial.

Additionally, four of McMillan's remaining allegations were not error: the
proffered hearsay testimony of two would-be defense witnesses did not meet the
declarations-against-interest exception to the general rule that hearsay is inadmissible;
McMillan explicitly rejected a voluntary-intoxication instruction at trial, and such an
instruction would have been inconsistent with his defense that he didn't commit the crime
or did so while angry; the use of McMillan's criminal-history score to calculate his
sentence was constitutional; and the imposition of the aggravated sentence was also
constitutional.


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The district court did err when it did not include a nonexclusive-possession
instruction and told the jury that the Zig Zag rolling papers were drug paraphernalia. But
no real possibility existed that the jurors would have found McMillan not guilty of these
offenses had they been properly instructed. Because McMillan was not prejudiced by the
district court's errors, we will not set aside the jury's verdict, which was reached after
presentation of evidence and the jury's careful deliberation.

FACTUAL BACKGROUND

On the morning of July 1, 2007, McMillan told police he had found his neighbor,
Jamison, dead on the floor of Jamison's mobile home. The body was lying in large pool
of blood. McMillan reported the incident to police as a possible suicide.

Questioned by the police, McMillan admitted that he and Jamison had played
dominoes and drunk whiskey together at Jamison's house the night before. McMillan said
that he went home around 11:30 p.m. and returned to check on Jamison the next morning
because Jamison had been complaining of pains in his side. While talking with
McMillan, the police noticed that McMillan had a lot of blood on the jeans, shirt, and
baseball cap he was wearing. McMillan said that he got the blood on him when he
checked to see if Jamison was alive.

The police took McMillan back to the station. Once there, they seized a
bloody folding knife from McMillan's pocket. The autopsy report indicated that Jamison
had died from loss of blood after he'd been stabbed or cut 56 times. Additionally, the
Kansas Bureau of Investigation concluded that the stains on McMillan's clothes were
most likely "expirated blood," meaning that the blood had to have left Jamison's body

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while he was still alive. The blood on McMillan's clothes and knife matched Jamison's
DNA.

Later that day, police searched McMillan's home. They found a locked box
containing marijuana and other drug paraphernalia under McMillan's bed. The
paraphernalia included a pipe, a tin container, and Zig Zag rolling papers. The police also
reviewed a call that McMillan made from jail to one of his roommates, Patty Senart, in
which the two discussed the drug charges against McMillan. McMillan and Patty shared
the same room in the trailer but had separate beds. McMillan told Patty that he had lost
the key to the locked box and said that Mark Senart, another one of his roommates and
Patty's brother-in-law, might have another key.

The State charged McMillan with one count of intentional second-degree murder,
one count of misdemeanor possession of marijuana, and one count of misdemeanor
possession of drug paraphernalia. The complaint was amended to add an alternative count
of unintentional second-degree murder, which was later dismissed by the State at trial. At
trial, McMillan presented evidence intended to show that he didn't kill Jamison and that
someone else did. McMillan continued to deny any involvement in Jamison's death at
sentencing.

A jury convicted McMillan of intentional second-degree murder and the two drug
charges. Based on McMillan's criminal history of G, he was sentenced to the aggravated
203-month prison sentence for intentional second-degree murder and given 12 months in
county jail for each of the misdemeanor drug charges; the sentences were ordered to run
consecutively, making the controlling sentence 227 months.



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ANALYSIS

McMillan makes several arguments on appeal. We will discuss each of them
separately.

1. The State Did Not Commit Prosecutorial Misconduct when It Referenced the Virginia
Tech, Columbine, and Kennedy Assassination Incidents, and the Prosecutor's
Comment on the Reasonable-Doubt Standard Was Improper, Though Not Prejudicial.

McMillan argues that the State committed misconduct twice during its closing
argument. McMillan's attorney did not object at trial, but Kansas appellate courts will
consider potential error based on prosecutorial misconduct in closing argument even
without an objection during trial. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009).

We review prosecutorial misconduct allegations in two steps: we first determine
whether there was misconduct and, if there was, we then determine whether the
misconduct amounts to plain error so that reversal is required. 288 Kan. at 351. As to the
first step, such misconduct occurs when the comments are outside the wide latitude
prosecutors are given when arguing cases. State v. McReynolds, 288 Kan. 318, 323, 202
P.3d 658 (2009). Prosecutors cannot comment on facts not in the evidence or give a
personal opinion about the defendant's or other witnesses' credibility. King, 288 Kan. at
351-52. But they can craft arguments that are reasonable inferences from the evidence.
288 Kan. at 351. Second, prosecutorial misconduct constitutes plain error when it
prejudices the jury against the defendant. McReynolds, 288 Kan. at 323. This court
considers three factors in deciding whether the remarks were prejudicial: "'(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 so direct and overwhelming] that the

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misconduct would likely have had little weight in [the jurors'] minds.'" 288 Kan. at 323.
No one factor is individually controlling, and the third factor cannot override the first two
unless the error was harmless, meaning it had little likelihood of changing the jury's
verdict. 288 Kan. at 323; State v. Tosh, 278 Kan. 83, 96, 91 P.3d 1204 (2004).

In this case, McMillan's allegations do not amount to prejudicial misconduct
warranting reversal.

A. Comparison to the Virginia Tech Massacre, Columbine Shooting, and Kennedy
Assassination

McMillan first complains that the State improperly compared his case to the
Virginia Tech massacre, the Columbine shooting, and the assassination of President
Kennedy. But the prosecutor's comparison of the four cases was limited to the point that
even though motives of killings could be unclear, we could still be confident about who
had killed whom:

"There are crimes that we will never know why. Look at the Columbine shooting
in Colorado. We don't know why that happened. Look at the Virginia Tech massacre on
the college campus. We don't know why that happened. We don't know why Lee Harvey
Oswald shot President Kennedy, but we know those incidents happened. We know who
did it. And we know how it was done. And in this case we have presented that information
to you."

McMillan insists that the comments inflamed the jury because they analogized his
case to large-scale tragedies and constituted unsworn testimony about those other events.
He also argues that the prosecution's mention of a lack of motive undermined its proof

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that he intended to commit the crime. The State replies that it was merely commenting on
the fact that it didn't need to prove motive.

It is improper for the prosecutor to make statements intended to inflame the jury's
passions or prejudices or to divert the jury from deciding the case on the evidence and
controlling law. Tosh, 278 Kan. at 90. Inflammatory comments can include those that
compare the case or the defendant to a high-profile crime or the person who committed it.
See DeFreitas v. State, 701 So. 2d 593, 601 (Fla. Dist. App. 1997) (improper to compare
the defendant's facts to specific facts in the O.J. Simpson case); State v. Bailey, 677
N.W.2d 380, 404 (Minn. 2004) (improper to suggest that the government had put the
defendant's DNA on incriminating evidence like it had done in the O.J. Simpson case);
State v. Taylor, 650 N.W.2d 190, 208 (Minn. 2002) (improper for the prosecutor to
comment that the defendant killed his victim "'like O.J.'" Simpson); State v. Thompson,
578 N.W.2d 734, 743 (Minn. 1998) (improper to refer to the O.J. Simpson verdict and to
suggest that the defendant was going to "get off like O.J." and referring to the Simpson
verdict served no purpose but to inflame jury and was therefore improper); People v.
Mendoza, 2001 WL 1198937, at *4 (Mich. App. 2001) (unpublished opinion) (improper
to compare the defendant's case to the Columbine shooting that occurred the day before
trial).

Nonetheless, it is not misconduct for the prosecutor to use examples from common
experience or history for explanation or contextual purposes. See People v. Salazar, 2010
WL 445497, at *9-10 (Cal. App. 2010) (unpublished opinion) (not improper to reference
the Columbine and Virginia Tech incidents to show that a person intending suicide could
also intend homicide); People v. Perez, 2008 WL 3330991, at *9-10 (Cal. App. 2008)
(unpublished opinion) (not misconduct for the prosecutor to reference the Virginia Tech
massacre to explain what it means for a person to "lose it" because the prosecutor did not

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set forth details of the massacre and did not argue that the defendant was like the
shooter); People v. Bailey, 2009 WL 3323252, at *4 (Mich. App. 2009) (unpublished
opinion) (not improper for the prosecutor to use Ted Bundy as an example to make her
point that guilt cannot be judged solely on the defendant's appearance); People v.
Fitzpatrick, 2003 WL 21977224, at *7-8 (Mich. App. 2003) (unpublished opinion) (not
misconduct for the prosecutor to compare the case's facts to Communists killing
American soldiers because the comments were related to the intent element of assault
with the intent to commit murder charge, not solely to inflame the jury or to invite the
jury to convict based on prejudice); State v. Schaub, 2005 WL 1531302, at *4 (Ohio App.
2005) (unpublished opinion) (not misconduct for prosecutor to reference the Holocaust in
closing argument because the prosecutor was not equating the defendant's conduct with
the Holocaust's magnitude or comparing the defendant with the one responsible for the
Holocaust); State v. Berger, 1998 WL 329590, at *2-3 (Wash. App. 1998) (unpublished
opinion) (not misconduct for the prosecutor to reference O.J. Simpson because the
prosecutor was not comparing the defendant to Simpson but was placing the case in
temporal context by using examples that the jury likely knew); accord People v.
Williamson, 172 Cal. App. 3d 737, 750, 218 Cal. Rptr. 550 (1985) (not improper for
prosecutor to argue matters of common knowledge or to use illustrations from common
experience, history, or literature); State v. Lal, 1997 WL 407869, at *5 (Wash. App.
1997) (unpublished opinion).

In this case, the State's comments did not compare McMillan to the shooters in
those incidents or contend that the murder here was as horrific as those incidents. The
comments were intended as examples of incidents with unclear motives that the jury was
likely familiar with. The State's purpose in using those statements is clear because it
surrounded them with a discussion of motive: "In this case the State doesn't know why

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this happened. . . . But that's not our burden. . . . Nowhere in [the jury] instructions does it
say the State has to prove the motive."

Nor do the comments constitute unsworn testimony. Unsworn testimony usually
takes the form of the prosecutor's personal opinions about the credibility of witnesses or
evidence or the prosecutor's arguments about facts not in evidence. See, e.g., State v.
Magallanez, 290 Kan. 906, 914, 235 P.3d 460 (2010); State v. Pabst, 268 Kan. 501, 507,
996 P.2d 321 (2000); State v. Gray, 2009 WL 398837, at *5 (Kan. App.) (unpublished
opinion), rev. denied 289 Kan. 1282 (2009). Although the referenced incidents aren't part
of the evidence in this case, the prosecutor used them merely as examples and did not
assume the role of an unsworn witness to those events, which are common knowledge.
Moreover, as the State points out, the defense counsel expanded on the prosecution's Lee
Harvey Oswald example in support of McMillan's defense by asserting that speculation
still exists about whether Oswald did kill Kennedy.

Finally, the comments do not undermine the State's burden to show intent. Motive
and intent are not identical, and the State properly told the jury that motive was not an
element of the crime. See State v. Carapezza, 286 Kan. 992, 999, 191 P.3d 256 (2008).
Moreover, the jury was given an instruction that second-degree murder required proof
that the defendant intended to kill the victim, and that instruction also defined intent.
Thus, the prosecutor's comments were not improper and did not constitute misconduct.

B. Burden of Proof

McMillan also objected to the prosecutor's explanation of reasonable doubt. After
noting that the State had the burden of proof, the prosecutor in part asked jurors to
consider what they felt in their hearts about the defendant's guilt:

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"And, basically, what it comes down to is, if you, in your hearts and in your
minds, after hearing all the evidence and taking all the evidence into consideration, you
feel in your hearts and in your minds that the State had proven each and every element of
the crime charged, you have reached that reasonable doubt standard and you must find
the defendant guilty."

McMillan contends that this statement reduced the State's burden of proof and essentially
told the jury to apply a completely subjective and improper definition of reasonable
doubt.

The State responds that this statement did not reduce its burden; rather, the
prosecution merely explained to the jury that the State had proved McMillan guilty if it
had met its burden on every element of the crime. The State notes that it had mentioned
its burden right before the objected-to statements.

The prosecution acts improperly when it misstates the law by incorrectly defining
its burden to prove the defendant guilty beyond a reasonable doubt. Magallanez, 290
Kan. 914-15. Kansas courts have repeatedly admonished prosecutors about explaining the
reasonable-doubt standard in their own words since reasonable doubt is best defined by
the words themselves. See State v. Brinklow, 288 Kan. 39, Syl. ¶ 5, 200 P.3d 1225
(2009); State v. Sappington, 285 Kan. 176, 185-86, 169 P.3d 1107 (2007); State v.
Wilson, 281 Kan. 277, 287, 130 P.3d 48 (2006); State v. Banks, 260 Kan. 918, 928, 927
P.2d 456 (1996); State v. Bridges, 29 Kan. 138, 141 (1882); State v. Jackson, 37 Kan.
App. 2d 744, 747, 157 P.3d 660, rev. denied 285 Kan. 1176 (2007). Even trial courts are
encouraged not to give more expansive definitions of the term when requested to by the
jury. State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003).


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When prosecutors have dared to define the term, there have been somewhat mixed
results as to whether a prosecutor's statements were improper. For example, it wasn't
misconduct when the prosecution referred the jury to the definition of reasonable doubt
and told the jury that it would know it when it saw it or that it must decide the definition.
Wilson, 281 Kan. at 286; State v. Milligan, 2010 WL 3488660, at *4 (Kan. App. 2010)
(unpublished opinion). Yet it was held improper to tell the jury that the burden is a
"common sense" burden, that the defendant was no longer presumed innocent, or that
jurors should vote guilty if they were reasonably sure of the defendant's guilt. See State v.
Decker, 288 Kan. 306, 315-16, 202 P.3d 669 (2009); State v. Mitchell, 269 Kan. 349,
361, 7 P.3d 1135 (2000); Jackson, 37 Kan. App. 2d at 747-49.

Most pertinent to this case are those cases in which it was held improper for the
prosecution to tell the jury to convict if it merely knew or believed that the defendant was
guilty. Magallanez, 290 Kan. at 914 (improper to tell the jury that reasonable doubt is "'a
standard that when you believe he's guilty you've passed beyond'" a reasonable doubt);
Brinklow, 288 Kan. at 49-50 (improper to tell the jury that "sometimes you just know"
that the defendant is guilty). Here, the State did just that: it told the jury members to "feel
in your hearts and in your minds" whether the State had shown that McMillan was guilty.
It is improper to ask jurors to decide whether reasonable doubt exists based upon feelings
in their heart or gut. See Randolph v. State, 117 Nev. 970, 979, 981-82, 36 P.3d 424
(2001) (prosecutor's statement that there's no reasonable doubt when a juror has "'a gut
feeling he's guilty'" held improper); Wesley v. State, 112 Nev. 503, 514, 916 P.2d 793
(1996) (prosecutor's statement that if you "'feel it in your stomach and if you feel it in
your heart . . . then you don't have reasonable doubt'" was improper).

We recognize that reasonable doubt is an important issue in most criminal trials
and that both prosecutors and defense lawyers often begin to address this concept during

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jury selection. We also recognize that both prosecutors and defense lawyers naturally
want to make some comment about the issue in closing argument. But our Supreme Court
has long ago provided guidance to prosecutors about what can't be said. Given the
importance of this issue in most criminal trials, a prosecutor should be able to prepare
remarks on this topic that can be given without violating these admonitions. It is outside
the prosecutor's wide latitude to ask jurors to look at anything other than the evidence
when determining someone's guilt, and it is improper to ask jurors to consider what they
feel in their heart when determining whether the State has met its burden of proof.

C. Prejudice

Even though the prosecution's reasonable-doubt explanation was improper, the
statement didn't prejudice McMillan.

First, the statement didn't rise to the level of what Kansas courts have found to be
"gross and flagrant." See State v. Kemble, 291 Kan. ___, 238 P.3d 251, 262 (2010) (gross
and flagrant to comment on criminal defendant's refusal to testify at trial); State v. Penn,
41 Kan. App. 2d 251, 277, 201 P.3d 752, rev. denied 289 Kan. 1284 (2009) (gross and
flagrant to elicit testimony that was a direct violation of the district court's order in
limine); State v. Herrera, 41 Kan. App. 2d 215, 227-28, 202 P.3d 68 (2009) (gross and
flagrant to intentionally attempt to taint the trial process with improper legal arguments),
State v. Bunyard, 281 Kan. 392, 407, 133 P.3d 14 (2006) (same); State v. Blomquist, 39
Kan. App. 2d 101, 111, 178 P.3d 42 (2008) (gross and flagrant to repeatedly refer to the
defendant's homosexuality in prosecution for indecent liberties with a minor); State v.
DuMars, 33 Kan. App. 2d 735, 746, 108 P.3d 448, rev. denied 280 Kan. 986 (2005)
(gross and flagrant to deliberately frame question to elicit an inadmissible hearsay
response); State v. Magdaleno, 28 Kan. App. 2d 429, 437, 17 P.3d 974, rev. denied 271
Kan. 1040 (2001) (gross and flagrant to call opposing counsel a liar).

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Second, with respect to ill will, the prosecutor did comment on the reasonable-
doubt definition against the urgings of both the Kansas Supreme Court and this court. See
State v. Elnicki, 279 Kan. 47, 66, 105 P.3d 1222 (2005) (failure of prosecutor to heed the
court's warnings not to comment on witness credibility showed ill will). But the
prosecution didn't mock the defendant or repeatedly ask the jury to "feel in its hearts and
minds" that the defendant was guilty. See Brinklow, 288 Kan. at 50 (repetition of
"'sometimes you just know'" showed ill will); Herrera, 41 Kan. App. 2d at 228 (ill will
includes mocking the defendant or repeated acts of misconduct). In fact, the prosecutor's
comments also referred to a proper definition of reasonable doubt and placed the
misstatement of the law in a context that otherwise was within the bounds of permissible
argument:

"I want to comment briefly on the reasonable doubt statute. The State filed this
case. The State has to prove the case. You know, that's the law, and that's fair. We have to
prove the case such that there is no reasonable doubt as to the truth of the elements that
we've alleged.
"Now, the Court has given you the instructions on the elements of each charge,
and we'll get into those later on. But that's the burden the State has.
"A lot of people have a misconception that we have to prove it—a case beyond
any and all doubt. Beyond a shadow of a doubt. That is not our burden, ladies and
gentlemen. The fact is and the law is, you can have a doubt as to the claim or a claim
made by the State of Kansas. But if that doubt is not reasonable, then, based upon the
evidence, you must find the defendant guilty.
"And there's no percentage on this. It's not set forth in the law. It's not saying,
well, you got to reach 51 percent, or you got to reach this percent or that percent. There's
no such thing.
"And, basically, what it comes down to is, if you, in your hearts and in your
minds, after hearing all the evidence and taking all the evidence into consideration, you
feel in your hearts and in your minds that the State has proven each and every element of

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the crime charged, you have reached that reasonable doubt standard and you must find
the defendant guilty.
"And we feel comfortable, based upon the evidence that you heard from the—
from the witness stand and the physical evidence that was introduced into evidence that
you're going to find the defendant guilty beyond a reasonable doubt in this case."

The prosecutor framed his misstatement within a discussion of the proper standard, and
the court's jury instruction included a proper definition of reasonable doubt. These are
significant factors supporting a finding of no ill will. See Decker, 288 Kan. at 315-16
(although the prosecution's statement was improper, the error was not prejudicial because
the prosecutor's other statements properly argued that the State had overcome the
presumption of innocence); Jackson, 37 Kan. App. 2d at 751 (no ill will because the
misstatement happened only once and the prosecutor referred the jury to the proper
reasonable-doubt standard). We thus find that the prosecutor's misstatement was not the
result of ill will or bad faith.

Third, the evidence of McMillan's guilt was very strong, although it probably
cannot be deemed "overwhelming," as the strength of the State's evidence arguably was
undermined in certain areas. We will review it in some detail, but the big picture is
strongly in the State's favor. McMillan was the last person known to have been with
Jamison. McMillan also was the person who found Jamison's body, and McMillan had a
great deal of blood on himself when police arrived. And there was Jamison's blood on the
blade of a pocketknife in McMillan's pocket, a knife that—in his pocket—was in a closed
position.

The State's case was weakened by its failure to test some evidence for blood or
DNA, by blood evidence that was inconsistent with McMillan committing the crime, and
by the defense's cross-examination of the State's blood-spatter expert. When the police
transported McMillan to the station, they placed a paper bag under him to prevent the

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blood on his clothes from transferring to the patrol car since McMillan indicated that he
had gotten the blood on him earlier that morning. The officers saw no blood transferred to
the bag, supporting an inference that McMillan had gotten the blood on him well before
he claimed to have checked Jamison's body. But the paper bag wasn't tested for traces of
blood, wasn't photographed, and wasn't preserved; the officers admitted the bag was a
precaution to prevent the patrol car from getting dirty, not an evidentiary collection.
Additionally, although Jamison had blood all over his hands when the police arrived, the
blood was not DNA tested; neither were the blood spatters on his baseball cap, traces of
blood found on the lockbox, or the second knife found in the investigation (either in
McMillan's bedroom or on his person) that tested positive for blood.

Another strong piece of evidence in the State's favor was the fact that Jamison's
blood was found on the bottom of both of McMillan's socks, which the officers thought
was odd since McMillan said that he didn't remove his shoes when checking Jamison's
vital signs. Additionally, no blood was seen on the inside of McMillan's shoes, indicating
that the blood on the socks had to be dry before McMillan put his shoes on. McMillan's
explanation for how his socks got bloody was suspect: he said that he had athlete's foot
and would scratch his feet with a knife, yet a few days after the murder, the officers saw
no injuries on McMillan's feet. And he presented no explanation for how the blade of his
folding pocketknife got bloody.

But McMillan's shoes had dark interiors and they weren't chemically tested to see
if traces of blood were present. Furthermore, the investigators found bloody shoe—not
sock—prints around Jamison's body and down the mobile home's hallway to the
bathroom. Jamison was ruled out as a contributor because he had no blood on the bottom
of his socks, and the officers and paramedics were also ruled out since they testified that
they were vigilant about not disturbing the crime scene. And the pair of shoes found

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under the kitchen table had no visible blood on the soles, just on their upper portions and
laces.

The blood-spatter expert's testimony was also a key to the State's prosecution. The
expert testified that the blood on McMillan's clothes was caused by more than the casual
contact with Jamison's body that McMillan testified to. But she admitted that her
conclusions didn't take into consideration McMillan's testimony that he lifted Jamison's
shirt. Cross-examination also questioned her conclusion that the blood left Jamison's
body while he was still alive and that McMillan therefore had to be present when Jamison
was being wounded. She said that the spatters were expirated blood—blood coming out
of the body by air. Yet she admitted that expiration was not the only way to create the
blood pattern on McMillan's clothes. Another way—impact collision—could have
occurred after Jamison had died, and she could not rule out an impact collision given the
evidence before her. In addition, the expert saw air bubbles (consistent with expirated
blood) in the spatter on the oven, but she did not see air bubbles in the blood on
McMillan's clothes. And no traces of blood were found in McMillan's bedroom or
bathroom.

Cross-examination of the coroner also raised questions about the State's case. The
coroner couldn't tie the alleged murder weapon (the pocketknife) to Jamison's wounds as
nicely as the State would've liked. Jamison had multiple defensive wounds on both of his
hands and forearms. Some of the stab wounds had pierced his heart and lungs, and his
tongue was intentionally cut. The coroner said that the pocketknife had a 4 1/2-inch blade
that was 1 3/4-inch wide, yet he said that one stab wound was only 1/2-inch wide. Yet the
coroner did say that the knife could have caused Jamison's wounds based on the notion
that the blade was long enough to cause the deep wounds.


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The defense also presented its own witnesses; their cumulative testimony showed
that someone else could have potentially committed the crime. Angel Hollenbeck,
Jamison's former roommate, testified of her whereabouts on the night of the crime—she
was camping near Topeka. The police were able to confirm that she was at a meeting in
Topeka the night of June 30 until at least 9 p.m. and in Topeka again on the afternoon of
July 1, but they could not explain where she was between those times. She also told the
police that she had stopped at a convenience store near the campground the night of June
30; but when the officers viewed the security tapes for that night, they didn't see her.
Additionally, she claimed that her permanent residence was at the Topeka Rescue
Mission during this time, but she did not register to live at the Mission until after the
murder occurred. The State did ask if she had killed Jamison, and she replied that she
hadn't.

The State tried to capitalize on McMillan's conflicting stories about what he
remembered the night of June 30. At one point, he told the police that the last thing he
remembered was playing dominoes and then finding Jamison the next morning—nothing
else. He had also told the officers that he remembered going home, waking up in his bed
the next morning, and then going to Jamison's trailer. McMillan's roommate, Mark
Senart, bolstered the latter account. Mark testified that McMillan came home at 11:30
p.m. on June 30, and that the two talked for a bit before McMillan went to his bedroom.
Mark didn't hear anyone leave the trailer after that, but he also said that he was playing a
loud video game and that McMillan had an exterior door in his bedroom that Mark might
not have heard. Still, McMillan never told the police that he spoke with Mark—just that
he went straight to bed.

Jamison's next-door neighbor said that he heard a truck pull up outside his window
about 12:30 the morning of July 1; the truck was red. The neighbor couldn't tell if the
occupant went inside Jamison's trailer but said that the truck was there for about 30

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minutes. He said that he'd seen a red truck in front of Jamison's trailer before. On cross-
examination, however, the State cast doubt on the neighbor's credibility. The neighbor
said that his windows were shut and that he was playing a video game that required a lot
of attention. He also admitted to not getting up to actually look out the window. Further,
when he was questioned by the police on July 2, he had said that he hadn't noticed
anyone next door the night before.

Even though the State's evidence against McMillan wasn't overwhelming, it was
quite strong, and the statements complained of were neither gross nor flagrant violations
nor the result of ill will. We conclude that the improper reasonable-doubt explanation did
not prejudice McMillan.


2. The District Court Properly Excluded Hearsay Testimony from Two Potential
Defense Witnesses that Jerald Shirack Admitted to Killing Jamison.

To support his defense at trial that someone else killed Jamison, McMillan wanted
to admit the testimony of two people who allegedly heard a man named Jerald Shirack
take responsibility for Jamison's death; the defense could not locate Shirack to subpoena
him.

The first witness was Angela Londeen, who would have testified that she
overheard Shirack say that the police had the wrong person in jail and then, later in the
same conversation, that he could get away with anything. The second was Cody Diehl; he
would have testified that he overheard Shirack say that someone in Abilene would be
calling the police to report a murder and that Shirack and that person would meet, split

19
some of Shirack's money, and then "take off." The district court excluded the evidence as
unduly prejudicial hearsay evidence.

McMillan argues that the exclusion denied him his right to a fair trial because he
wasn't able to present his defense that someone else killed Jamison. The State recognizes
the defendant's important right to present his defense but maintains that the right is not
unlimited and is subject to the rules of evidence. The State maintains that the testimony
was speculative and unreliable so that its prejudice far outweighed any probative value.

A defendant has a right to present his or her theory of defense; excluding evidence
that is an integral part of that theory violates the defendant's constitutional right to a fair
trial. State v. White, 279 Kan. 326, 331, 109 P.3d 1199 (2005). Although the district
court's evidentiary rulings are typically reviewed by this court for abuse of discretion, the
question of whether the exclusion violated a defendant's constitutional rights is subject to
unlimited review because the district court necessarily abuses its discretion when it
makes an error of law and the exclusion impacts McMillan's constitutional rights. See
279 Kan. at 332. If it were error to exclude the evidence, then reversal would be required
unless the error was harmless, meaning that this court is willing to declare beyond a
reasonable doubt that the error had little, if any, likelihood of changing the trial's
outcome. State v. Martinez, 288 Kan. 443, 450, 204 P.3d 601 (2009).

Angela's and Cody's statements are hearsay because they recount Shirack's out-of-
court statements and are offered to prove that Shirack took responsibility for Jamison's
death. K.S.A. 60-460 ("Evidence of a statement which is made other than by a witness
while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay
evidence."). Hearsay is generally inadmissible. See K.S.A. 60-460. McMillan admits that

20
the statements are hearsay, but he contends that they are admissible under the
declarations-against-interest exception in K.S.A. 60-460(j).

The declarations-against-interest exception allows hearsay statements that, when
made, "so far subjected the declarant to civil or criminal liability . . . that a reasonable
person in the declarant's position would not have made the statement unless the person
believed it to be true." K.S.A. 60-460(j). Confessing to having committed a crime is a
declaration against interest. State v. Meinert, 31 Kan. App. 2d 492, 495, 67 P.3d 850, rev.
denied 276 Kan. 972 (2003). In Meinert, the defense tried to introduce someone else's
admission that he, not the defendant, had assaulted the victim; the district court excluded
the testimony. This court found that the exclusion was error. 31 Kan. App. 2d at 495.
Similarly, in State v. Campbell, 29 Kan. App. 2d 50, 63-64, 23 P.3d 176 (2001), this
court found that the district court improperly excluded a third party's admission to killing
the victim. In Campbell, the third party told a fellow inmate the details of how had he
killed the victim.

But in Meinert and Campbell, the declarants gave specific details about the crime
they confessed to—names, dates, and places—that coincided with the crime that the
defendants were charged with. Meinert, 31 Kan. App. 2d at 495; Campbell, 29 Kan. App.
2d at 64. Such a nexus or connection was missing in this case. The statements that Angela
overheard mentioned nothing that would link Shirack's statements to Jamison's death,
especially when the statements were separated by time within the same conversation.
Cody's testimony, however, did tie Shirack's statement to a murder in Abilene. But again,
the statements have little nexus to Jamison's murder and in fact reference what would be
occurring after Cody heard them on July 1 ("going to call the police" and "going to meet"
and "going to take off"), not what occurred before then, including Jamison's murder.
Furthermore, Cody wasn't even sure the speaker was Shirack: Cody said it was dark and

21
he thought that it was Shirack only because the person had long hair, a beard, and looked
like Jesus.

Shirack's statements from Angela's and Cody's testimony would not clearly subject
him to criminal liability—they did not affirmatively show that he had confessed to
murdering Jamison. Therefore, they do not meet the declaration-against-interest hearsay
exception, and the district court properly excluded them. Their exclusion likewise did not
prevent McMillan from pursuing his theory of defense. He still presented the testimony
of others and cross-examined the State's witnesses in a manner designed to show that
someone else (although not Shirack specifically) committed the crime.

3. The District Court Did Not Err by Not Giving a Voluntary-Intoxication Instruction
Because McMillan Explicitly Rejected this Defense at Trial and the Instruction Would
Have Been Inconsistent with His Admonition that He Didn't Commit the Crime.

McMillan argues on appeal that the district court should have instructed the jury
that voluntary intoxication can sometimes be a defense to a crime. But because McMillan
is challenging the district court's failure to include an instruction he did not request, he
has to show clear error, meaning that not only did the district court err but that there also
is a real possibility that the jury would have rendered a different verdict had the
instruction been given. See K.S.A. 22-3414(3); State v. Martinez, 288 Kan. 443, 451-52,
204 P.3d 601 (2009). McMillan has not met that burden in this case.

McMillan was charged with intentional second-degree murder, which
requires proof that the defendant intended to kill. K.S.A. 21-3402(a). Voluntary
intoxication operates as a defense to that crime if it prevents the defendant from forming
the necessary intent to kill. State v. Jones, 283 Kan. 186, 209, 151 P.3d 22 (2007); State

22
v. Hayes, 270 Kan. 535, 542-43, 17 P.3d 317 (2001); PIK Crim. 3d 54.12-A. McMillan
argues that the district court should have given a voluntary-intoxication instruction
because the jury could have found that he did not intend to kill Jamison because he was
too intoxicated.

Before a defendant is entitled to an instruction on a theory of defense, evidence in
support of that theory must exist and must be sufficient for a rational fact-finder to find
for the theory after viewing the evidence in the defendant's favor. State v. Anderson, 287
Kan. 325, 334, 197 P.3d 409 (2008). In this case, evidence was presented that McMillan
was intoxicated the night of the crime. McMillan told the officers that he had been
drinking that night, and officers found an empty bottle of whiskey in Jamison's trash can
and two glasses on the kitchen table, one of which contained alcohol.

But the State properly questions the propriety of giving a voluntary-intoxication
instruction when McMillan did not raise it as a theory of defense at trial. Although a
defendant may present inconsistent theories of defense, it doesn't mean that the defendant
is entitled to an instruction on every defense theory that is supported by some evidence.
State v. Trussell, 289 Kan. 499, 505, 213 P.3d 1052 (2009). District courts "should not
interfere with a defendant's chosen defense theory by giving an instruction which neither
party requested and which may undermine defendant's chosen theory." 289 Kan. at 505.

Throughout the entire trial in this case, McMillan maintained that he did not
commit the crime; it was only during closing argument that his counsel alluded to another
theory of defense: that the offense was committed upon sudden rage or quarrel. But
McMillan never argued that he was so intoxicated that he couldn't have intended to kill
Jamison. What's more, the defense attorney explicitly said at the jury-instruction
conference—after all the evidence had been presented—that the defendant was not

23
claiming an intoxication defense: "[W]e are not making claim of intoxication. We've not
asked for an intoxication defense." It was therefore appropriate for the district court to not
give a voluntary-intoxication instruction when the State didn't request one and the
defense explicitly said that it would not rely on that defense.

Even if it had been error to not give the instruction, we find no real possibility
exists that the jury would've rendered a different verdict. The evidence did show that
McMillan had been drinking. But no evidence was presented that would've shown that
McMillan was so intoxicated that he wasn't aware that he was killing Jamison. And the
gruesome nature of the crime indicates otherwise: Jamison suffered 56 knife wounds all
over his body, during which time he was apparently trying to defend himself, and the
coroner found that his tongue had intentionally been cut.

Finally, McMillan tries to say that the absence of a motive to commit the crime
infers an absence of intent to kill. But the jury was given a possible motive: Jamison
might have "come on" to McMillan and McMillan might have reacted violently. Officers
found women's underwear, women's earrings, and an unidentifiable sex toy in Jamison's
bedroom, and Jamison was wearing a pair of women's underwear when he was killed.
Thus, McMillan has not shown that the district court's failure to give a voluntary-
intoxication instruction was clearly erroneous.

4. The District Court Erred by Not Giving a Nonexclusive-Possession Instruction, but
this Error Does Not Require Reversal Because the Jury's Verdict Would Have Been
the Same Had It Been Given.

The jury was given the standard possession instruction: Possession of a controlled
substance means that the defendant must know that the substance is present and intend to

24
exercise control over it. See PIK Crim. 3d 67.13-D. McMillan contends that this wasn't
enough and that the district court should have included the optional nonexclusive-
possession paragraph in the pattern instruction because he presented evidence that one of
his roommates had a key to the locked box in which the marijuana, rolling papers, and tin
container were found.

Again, because McMillan did not request the instruction, we do not reverse a
jury's verdict unless he shows clear error. See K.S.A. 22-3414(3); Martinez, 288 Kan. at
451-52. First, it's important to note that the nonexclusive-possession instruction explicitly
discusses the possession of controlled substances, not drug paraphernalia. PIK Crim. 3d
67.13-D; see State v. DuMars, 33 Kan. App. 2d 735, 751, 108 P.3d 448, rev. denied 280
Kan. 986 (2005). But the usage notes to the pattern instructions governing possession of
drug paraphernalia refer to PIK Crim. 3d 67.13-D for the definition of possession. PIK
Crim. 3d 67.17. The concepts involved in possession of either drugs or paraphernalia are
the same. So this court can consider McMillan's assertion of error as to both the drug-
paraphernalia and drug-possession charges.

The nonexclusive-possession instruction is given when the defendant
doesn't have exclusive possession over the premises or vehicle in which an illegal
substance is found. PIK Crim. 3d 67.13-D. Here, McMillan did not exclusively possess
the mobile home—he lived with three other people. And although the items were found
in a locked box under McMillan's personal bed in the mobile home, evidence was
presented that another one of McMillan's roommates, Mark Senart, may have had a key
to the box. Therefore, the district court erred in not giving the nonexclusive-possession
instruction.


25
Nonetheless, McMillan cannot show clear error because there is no reasonable
possibility that the jury would have rendered a different verdict had the instruction been
given. The nonexclusive-possession instruction includes seven factors for the jury to
consider when determining whether the defendant possessed the incriminating items. PIK
Crim. 3d 67.13-D. But the district court should only instruct on those factors that are
supported by evidence. See PIK Crim. 3d 67.13-D Notes on Use; State v. Douglas-
Keough, 2009 WL 1766238, at *4 (Kan. App. 2009) (unpublished opinion). Here, the
only factors that are supported by evidence are whether the items were found in plain
view and whether the defendant's personal belongings were found near the items. And in
this case, both factors support the conclusion that McMillan exclusively possessed the
paraphernalia and the marijuana.

The items were not in plain view and were not found in the mobile home's
common areas. They were found in a locked box; the locked box belonged to McMillan
and was under his personal bed in the mobile home. The location and secured status of
the box strongly suggest that McMillan knowingly possessed them, and none of the
factors that would have been listed for consideration in the nonexclusive-possession
instruction suggest otherwise. Therefore, even if the district court had properly instructed
the jury on nonexclusive possession, the jury would have returned the same verdict—
guilty.

5. The District Court Erred when It Told the Jury that the Zig Zag Rolling Papers Were
Drug Paraphernalia, but Reversal Is Not Required Because the Proper Instruction
Would Not Have Changed the Jury's Verdict.

McMillan asserts one more error in the jury instructions. He insists that the
instruction defining drug paraphernalia was improper because the definition included an

26
item not specifically identified as paraphernalia in Kansas' statutes—Zig Zag rolling
papers. McMillan contends that the district court should have had the jury determine
whether the Zig Zag papers were paraphernalia using the factors listed in Instruction 10,
which is PIK Crim. 3d 67.18-C. The State responds that no error occurred because
Instruction 10 listed the factors for the jury to consider when deciding whether an item is
drug paraphernalia. Once again, because McMillan did not object to the instruction at
trial, he must show clear error to set aside the jury's verdict. See K.S.A. 22-3414(3);
Martinez, 288 Kan. at 451-52.

McMillan is correct: Kansas' statutory definition of drug paraphernalia includes
"wired cigarette papers," and it hasn't been established in this case that Zig Zag papers
meet that definition. K.S.A. 2007 Supp. 65-4150(c)(12)(O). Thus, the district court
should have told the jury that drug paraphernalia includes wired cigarette papers, leaving
it up to the jury to determine whether Zig Zag papers were drug paraphernalia. While the
State is correct that Instruction 10 did tell the jury the proper factors to consider when
determining whether an item is drug paraphernalia, Instruction 9 expressly said that the
Zig Zag papers were drug paraphernalia, so Instruction 10 did not cure the error.

Nevertheless, we agree with the State that there is no real possibility the jury's
verdict would have been different had the jury been left to determine whether the Zig Zag
papers were paraphernalia under Instruction 10, so reversal is not required. Instruction 9
told the jury that paraphernalia included products used for introducing a controlled
substance into the human body; Instruction 10 told the jury to consider an item's
proximity to controlled substances and testimony concerning the object's use when
making its determination. See K.S.A. 2007 Supp. 65-4150(c)(12); K.S.A. 2007 Supp. 65-
4151(d), (n). The Zig Zag papers were found in a locked box that contained other items
of drug paraphernalia. More to the point, other items of drug paraphernalia were also

27
found, including two pipes—a wooden "one-hitter" and a metal pipe—that an officer said
were used to smoke marijuana. No testimony suggested any other use for the pipes.
Therefore, no real possibility exists that the jury would not have convicted McMillan of
possession of drug paraphernalia even if a proper instruction had been given. The district
court did not commit clear error, so reversal is not required.

6. The District Court Did Not Err in Using McMillan's Criminal History to Calculate
His Sentence Because the Kansas Supreme Court Has Deemed the Practice
Constitutional.

McMillan's next argument is that the district court violated his constitutional rights
when it used his criminal history to calculate his sentence without following the
procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L.
Ed. 2d 435 (2000). The State argues in response that prior convictions are expressly
excluded from Apprendi's rule.

Apprendi requires that "any fact that increases the penalty for a crime beyond the
prescribed statutory maximum . . . be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. As the State pointed out, a defendant's prior
convictions are explicitly excluded from this requirement. See 530 U.S. at 490. The
Kansas Supreme Court has recognized the continuing validity of this prior-conviction
exception to Apprendi's requirements. See State v. Fewell, 286 Kan. 370, 395-96, 184
P.3d 903 (2008); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002). The district
court did not err when it used McMillan's criminal-history score to calculate his sentence.


28
7. The District Court Did Not Err when It Failed to Put the Aggravating Sentencing
Factors Before the Jury to Be Proved Beyond a Reasonable Doubt Because the
Kansas Supreme Court Has Deemed the Practice Constitutional.

McMillan's final argument is that the district court further violated his
constitutional rights by giving him the aggravated sentence for second-degree murder
without submitting the aggravating factors to the jury to be proved beyond a reasonable
doubt. Our sentencing guidelines provide three possible sentences in each applicable grid
box: a mitigated (or lower) sentence, a standard sentence, and an aggravated (or higher)
sentence. The district court gave McMillan the aggravated sentence of 203 months for
second-degree murder rather than the standard sentence (195 months) or the mitigated
sentence (184 months). McMillan contends that this violates the right to a jury trial based
on Cunningham v. California, 549 U.S. 270, 274-75, 127 S. Ct. 856, 166 L. Ed. 2d 856
(2007). In that case, the United States Supreme Court held it unconstitutional to impose a
sentence above the statutory maximum based on facts not proven by the jury.

But once again the Kansas Supreme Court has considered and rejected McMillan's
argument: because an aggravated sentence is still within the maximum statutory
sentence, imposing it does not violate the holding of Cunningham. State v. Johnson, 286
Kan. 824, 851-52, 190 P.3d 207 (2008). The district court did not violate McMillan's
constitutional rights when it imposed the aggravated sentence.

The judgment of the district court is therefore affirmed.

* * *
MALONE, J., concurring: I respectfully concur in the result, but I would find no
prosecutorial misconduct in the closing argument. I agree with the majority that the

29
prosecutor did not commit misconduct by referring to some widely known shooting
incidents only to make the point that the State did not need to prove motive. As for the
prosecutor's comments on the State's burden of proof, the comments are set forth in their
entirety in the majority opinion as follows:

"[The Prosecutor:] The Court instructed you in Instruction No. 13 on—on
reasonable doubt, and I want to discuss that with you.
. . . .
"I want to comment briefly on the reasonable doubt statute. The State filed this
case. The State has to prove the case. You know, that's the law, and that's fair. We have to
prove the case such that there is no reasonable doubt as to the truth of the elements that
we've alleged.
"Now, the Court has given you the instructions on the elements of each charge,
and we'll get into those later on. But that's the burden the State has.
"A lot of people have a misconception that we have to prove it—a case beyond
any and all doubt. Beyond a shadow of a doubt. That is not our burden, ladies and
gentlemen. The fact is and the law is, you can have a doubt as to the claim or a claim
made by the State of Kansas. But if that doubt is not reasonable, then, based upon the
evidence, you must find the defendant guilty.
"And there's no percentage on this. It's not set forth in the law. It's not saying,
well, you got to reach 51 percent, or you got to reach this percent or that percent. There's
no such thing.
"And, basically, what it comes down to is, if you, in your hearts and in your
minds, after hearing all the evidence and taking all the evidence into consideration, you
feel in your hearts and in your minds that the State has proven each and every element of
the crime charged, you have reached that reasonable doubt standard and you must find
the defendant guilty.
"And we feel comfortable, based upon the evidence that you heard from the—
from the witness stand and the physical evidence that was introduced into evidence that
you're going to find the defendant guilty beyond a reasonable doubt in this case."


30
The prosecutor began his comments by referring the jury to Instruction 13 which
was substantially the same as the approved PIK instruction on burden of proof,
presumption of innocence, and reasonable doubt. See PIK Crim. 3d 52.02. Then the
prosecutor informed the jury that the State had the burden "to prove the case such that
there is no reasonable doubt as to the truth of the elements that we've alleged." In the
same sentence in which the prosecutor briefly referred to the hearts and minds of the
jurors, the prosecutor indicated that the State must prove "each and every element of the
crime charged." Finally, and most importantly, the prosecutor reminded the jury that the
verdict must be "based upon the evidence that you heard . . . from the witness stand and
the physical evidence."

In my experience, an appellate court finding of prosecutorial misconduct is the
kind of pronouncement that most prosecutors and the general public view quite seriously.
In this instance, upon reviewing the prosecutor's comments in their entirety, I find no
misconduct committed by the prosecutor in the closing argument.