State v. Miller

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,247

STATE OF KANSAS,
Appellee,

v.

XAVIER MILLER,
Appellant.


SYLLABUS BY THE COURT

1.
When the appellant fails to object at trial to the inclusion of a jury instruction, the
appellate court applies a clearly erroneous standard of review. To find an instruction
clearly erroneous, the appellate court must be convinced there is a real possibility the jury
would have rendered a different verdict had the jury been properly instructed.

2.
When a defendant is charged with voluntary manslaughter, the jury should be
instructed pursuant to PIK Crim. 3d 56.05, Alternative A, which sets forth the elements
of voluntary manslaughter.

3.
When the crime of voluntary manslaughter is submitted to the jury as a lesser
included offense of the crime charged, the jury should be instructed pursuant to PIK
Crim. 3d 56.05, Alternative B, which instructs the jury to simultaneously consider the
offenses of second-degree murder and voluntary manslaughter.

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4.
The district court erred in this case when it properly instructed the jury pursuant to
PIK Crim. 3d 56.05, Alternative B to simultaneously consider the lesser included
offenses of second-degree murder and voluntary manslaughter, but then also erroneously
instructed the jury to sequentially consider the lesser offenses of second-degree murder
and voluntary manslaughter, using a modified form of PIK Crim. 3d 56.05, Alternative
A.

5.
Under the facts of this case, when the jury was given contradictory instructions to
consider the lesser included offenses of second-degree murder and voluntary
manslaughter sequentially under a modified form of PIK Crim. 3d 56.05, Alternative A,
and simultaneously under PIK Crim. 3d 56.05, Alternative B, and the remaining
instructions, closing argument, and verdict form also led the jury to consider the lesser
included offenses sequentially rather than simultaneously, a real possibility exists that the
jury would have rendered a different verdict had it been properly instructed.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 5, 2009.
Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge. Opinion filed September 2, 2011.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed, and the case is remanded to the district court.

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

Sheryl L. Lidtke, assistant district attorney, argued the cause, and John Bryant, assistant district
attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by
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MORITZ, J.: In this appeal, we granted review of the Court of Appeals' decision
affirming Xavier Miller's conviction of intentional second-degree murder. State v. Miller,
No. 100,247, 2009 WL 1591572 (Kan. App. 2009) (unpublished opinion). The issue
presented on review is whether the district court clearly erred when it appropriately
instructed the jury that it should simultaneously consider the lesser included offenses of
second-degree murder and voluntary manslaughter, but then erroneously gave a
contradictory instruction directing the jury to consider the offense of voluntary
manslaughter only if it could not agree on the offense of second-degree murder. Because
we find there is a real possibility the jury would have rendered a different verdict had it
not received the inappropriate and contradictory instruction advising it to consider the
lesser included offenses sequentially, we reverse the Court of Appeals' decision affirming
Miller's conviction, reverse Miller's conviction and remand for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 2007, Xavier Miller, Shawnte Holliday, Andre Chapman, and August
Peeler gathered at Peeler's apartment in Kansas City, Kansas, to celebrate Holliday's
birthday. Peeler's son, who was also Miller's child, and Peeler's daughter were also
present in the apartment. At some point in the evening, Chapman, Miller, and Peeler left
the apartment, and Holliday's boyfriend, Brandon Estis, arrived. Miller, Peeler, Chapman,
and Articulus Watson, Miller's cousin, returned to the apartment to find Estis choking
Holliday, who was on the floor. Estis told everyone to leave and lifted up his shirt,
revealing a revolver. Miller, Chapman, and Watson eventually left. Estis left shortly
thereafter, followed by Holliday. Approximately 30 minutes to an hour later, Miller and
Watson returned so Miller could check on Peeler and the couple's son.

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Miller testified in his own defense at trial, and the following summary of the
events of the evening is derived from Miller's testimony.

As Miller and Watson drove into the apartment complex parking lot, Miller saw
Estis' car. From the parking lot, Miller telephoned Estis and asked why he was still there.
Estis responded, "[B]itch ass nigga, what you mean what I still doing out here? Where
you at?" Miller asked Estis where he was, and Estis said, "I'm right here." Estis then got
out of his car in the parking lot and started walking toward Miller. Miller was scared
because he knew Estis had a gun.

Miller borrowed a semiautomatic handgun from someone he knew only as "JJ,"
who was standing nearby. As Miller started walking toward Estis, Estis pointed his gun at
Miller, and Miller began firing his gun. According to Miller, he shot Estis twice. One of
his shots made Estis' arm flinch and caused Estis to fling his gun to the ground.

Estis then started stumbling toward the gun, attempting to retrieve it. Miller
realized his gun was out of bullets so he ran to Estis' gun, picked it up, and shot Estis
twice in the head.

The State charged Miller with premeditated first-degree murder. Although the
record contains no discussion of the basis for giving lesser included offense instructions,
the district court instructed the jury on the lesser included offenses of second-degree
murder and voluntary manslaughter in addition to premeditated first-degree murder.
Those instructions provided:

"Number eight. If you do not agree that the defendant is guilty of Murder in the
First Degree, you should then consider the lesser offense of Murder in the Second
Degree.
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"To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Brandon Estis; and
2. That this act occurred on or about the 13th day of June, 2007, in Wyandotte
County, Kansas.
"Instruction number nine. In determining whether the defendant is guilty of
Murder in the Second Degree, you should also consider the lesser offense of Voluntary
Manslaughter. Voluntary Manslaughter is an intentional killing done upon a sudden
quarrel or in the heat of passion or upon—or upon an unreasonable but honest belief that
circumstances existed that justified deadly force in defense of a person.
"If you decide the defendant intentionally killed Brandon Estis, but that it was
done upon a sudden quarrel or in the heat of passion or upon an unreasonable but honest
belief that circumstances existed that justified deadly force in defense of a person, the
defendant may be convicted of Voluntary Manslaughter only.
"Number 10. If you do not agree the defendant is guilty of Murder in the Second
Degree, you should then consider the lesser included offense of Voluntary Manslaughter.
"To establish this charge, each of the following claims must be proved:
1. That the defendant intentionally killed Brandon Estis;
2. That it was done:
a) Upon a sudden quarrel; or
b) In the heat of passion; or
c) Upon an unreasonable but honest belief that circumstances
existed that justified deadly force in defense of a person; and
3. That this act occurred on or about the 13th day of June, 2007, in Wyandotte
County, Kansas."

The jury convicted Miller of second-degree murder. Miller appealed his
conviction, and the Court of Appeals affirmed in part and dismissed in part. Miller, 2009
WL 1591572, at *7. We granted Miller's petition for review.

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ANALYSIS

In his appeal to the Court of Appeals and in his petition for review to this court,
Miller challenges the instructions given to the jury regarding lesser included offenses. In
particular, Miller claims that Instructions Nos. 9 and 10 inconsistently advised the jury
regarding the order in which it was to consider the lesser included offenses.
Consequently, Miller argues the jury may not have considered whether he was guilty of
voluntary manslaughter instead of the offense of which he was convicted, second-degree
murder.

Miller concedes that Instruction No. 9, which mirrored PIK Crim. 3d 56.05,
Alternative B, properly directed the jury to simultaneously consider the lesser included
offenses of second-degree murder and voluntary manslaughter. That instruction stated in
relevant part: "In determining whether the defendant is guilty of murder in the second
degree, you should also consider the lesser offense of voluntary manslaughter." But
Miller argues the jury was then incorrectly advised in Instruction No. 10 to consider the
lesser offenses sequentially. That instruction, which was based in part on PIK Crim. 3d
56.05, Alternative A, stated: "If you do not agree that the defendant is guilty of murder
in the second degree, you should then consider the lesser included offense of voluntary
manslaughter." (Emphasis added.)

Because Miller did not object below to the inclusion of Instruction No. 10, we
apply a clearly erroneous standard on review. See K.S.A. 22-3414(3). To find an
instruction clearly erroneous, we must be convinced there is a real possibility the jury
would have rendered a different verdict had the jury been properly instructed. State v.
Graham, 275 Kan. 831, Syl. ¶ 2, 69 P.3d 563 (2003).

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As Miller points out, the alternative PIK instructions are designated as
"alternative" instructions for a reason—they were not intended to be given together.
Rather, as the "Notes on Use" accompanying PIK Crim. 3d 56.05 clarifies, Alternative A
should be used if the information charges voluntary manslaughter, while Alternative B
should be used when voluntary manslaughter is submitted to the jury as a lesser included
offense of the crime charged. Here, the crime of voluntary manslaughter was submitted to
the jury as a lesser included offense of the charged crime of first-degree murder. Thus,
only Instruction No. 9, which was based on Alternative B, should have been given to the
jury in this case, and the district court erred in also giving Instruction No. 10.

Before considering whether this was clearly erroneous, we note that the State
urges us to affirm the Court of Appeals' decision based upon our holding in State v. Abu-
Fakher, 274 Kan. 584, 609, 56 P.3d 166 (2002). There, as here, voluntary manslaughter
was submitted as a lesser offense of the crime charged; thus, PIK Crim. 3d 56.05,
Alternative B, was the appropriate instruction. But in Abu-Fakher, instead of giving both
instructions, the district court fashioned its own instruction using Alternative B but
appended it to a portion of Alternative A.

However, the improvised instruction at issue in Abu-Fakher did not contain any
language instructing the jury to consider voluntary manslaughter only if it could not agree
as to the defendant's guilt on the second-degree murder charge. In fact, the court
specifically noted that the instruction did not preclude the jury from simultaneously
considering the lesser included offense of voluntary manslaughter. Rather, the issue in
Abu-Fakher was whether the improvised instruction improperly shifted the burden to the
defendant to prove mitigating circumstances, which the court held it did not. 274 Kan. at
609. Thus, Abu-Fakher has no significance in our analysis of this case.

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In considering whether the instructional error requires reversal in this case, Miller
urges us to rely on Graham, 275 Kan. 831. There, although the defendant was not
charged with attempted voluntary manslaughter, the district court instructed the jury
using Alternative A instead of Alternative B. This court found this "reordering" of the
jury's decision-making process deprived the jury of the opportunity to consider the
mitigating circumstances of heat of passion or sudden quarrel that reduce an intentional
homicide from murder to voluntary manslaughter. 275 Kan. at 837. The court reasoned:

"Both second degree-murder [sic] and voluntary manslaughter are intentional killings. An
intentional homicide is reduced from murder to voluntary manslaughter if it is committed
upon a sudden quarrel or in the heat of passion under K.S.A. 21-3403(a). Where the
homicide is intentional and there is some evidence the homicide was committed under the
mitigating circumstances contained in K.S.A. 21-3403(a), the appropriate voluntary
manslaughter instruction should be considered by the jury during its consideration of
second-degree intentional murder. Thus, where there is evidence of mitigating
circumstances justifying an instruction on voluntary manslaughter in a case where
voluntary manslaughter is a lesser included offense, a failure to instruct the jury to
consider such circumstances in its determination of whether the defendant is guilty of
second-degree murder, is always error—and in most cases—presents a case of clear
error." 275 Kan. at 837.

The Graham court found this error was compounded when the district court
instructed the jury that "'when there is a reasonable doubt as to which of two or more
offenses the defendant is guilty, he may be convicted of the lesser offense only.'" 275
Kan. at 840. The court concluded this instruction sent a message to the jury that if it
found the defendant guilty of attempted second-degree murder it need not consider
attempted voluntary manslaughter. 275 Kan. at 840.

Graham relied upon a factually similar case, State v. Cribbs, 29 Kan. App. 2d 919,
34 P.3d 76 (2001), in which the district court erroneously instructed the jury using PIK
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Crim. 3d 56.05, Alternative A, rather than Alternative B, although the defendant was not
charged with attempted voluntary manslaughter. The Court of Appeals panel in Cribbs
found that the instruction told the jury, in essence, it "need not bother" to consider
attempted voluntary manslaughter unless and until it failed to agree on defendant's guilt
of attempted second-degree murder. 29 Kan. App. 2d at 924. Thus, the panel recognized
that the jury "may never have fully analyzed whether the shooting was the product of heat
of passion or a sudden quarrel, the factors that distinguish the greater and the lesser
crimes and the reasons they require simultaneous deliberation when the evidence could
support either." 29 Kan. App. 2d at 924.

The Cribbs panel concluded the error was clearly erroneous and, like this court in
Graham, was not swayed by the "reasonable doubt" instruction given the jury. As the
panel observed: "[T]his instruction was insufficient to cure the error, because it still
made any consideration of attempted voluntary manslaughter contingent on the jury's
prior inability to convict on attempted second-degree murder." 29 Kan. App. 2d at 924.

The State argues, as it did before the Court of Appeals, that Graham and Cribbs
are distinguishable because the jury in this case received both the applicable PIK Crim.
3d 56.05, Alternative B instruction and the inapplicable PIK Crim. 3d 56.05, Alternative
A instruction. The Court of Appeals agreed and concluded that the instructions "as a
whole" properly stated the law. Miller, 2009 WL 1591572, at *5. However, the panel's
conclusion is problematic:

"The jury was instructed to consider second-degree murder and voluntary manslaughter
simultaneously, to convict of the lesser offense only if there was a reasonable doubt as to
which of one or more offenses the defendant was guilty, and to refrain from singling out
one or more instructions and disregarding others. Based on these facts, we find no real
possibility the jury would have rendered a different verdict in the absence of Instruction
No. 10 and thus no clear error in the district court's decision to instruct the jury on
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voluntary manslaughter using both alternative A and alternative B of PIK Crim. 3d
56.05." (Emphasis added.) Miller, 2009 WL 1591572, at *5.

Ironically, in concluding that the instructions "as a whole" properly and fairly
stated the law, the Court of Appeals panel did not mention the instruction at issue in this
case—i.e., the instruction that required the jury to sequentially consider the lesser
offenses of second-degree murder and voluntary manslaughter. Yet that instruction was
entirely contradictory to the instruction advising the jury to consider the crimes
simultaneously. Thus, in order to properly and fairly apply the instructions, the jury
would have been required to do exactly what it had been instructed not to do—to
disregard the instruction advising it to consider the crimes sequentially and single out the
instruction directing it to consider the crimes simultaneously.

The same faulty analysis underlies the State's suggestion at oral argument that we
should presume the jury followed the correct instruction and disregarded the improper
instruction directing it to sequentially consider the two offenses.

Further, as both Graham and Cribbs recognized, the reasonable doubt instruction
relied upon here by the Court of Appeals as support for its conclusion that the jury
properly applied the instructions actually may have enhanced the error. If the jury chose
to consider the crimes sequentially rather than simultaneously (that is, to follow
Instruction No. 10 instead of Instruction No. 9), it may have found the defendant guilty of
the lesser included offense of second-degree murder without ever considering voluntary
manslaughter. The "reasonable doubt" instruction did not indicate to the jury that it was
to consider the lesser offenses simultaneously—rather, it instructed the jury that if
reasonable doubt existed as to "which of one or more offense[s] the defendant is guilty,
he may be convicted of the lesser offense only." (Emphasis added.)

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Although not discussed by either party, our review of the entirety of the record
leads us to conclude that if any presumption is to be made, it would be more logical to
presume the jury followed the instruction to sequentially consider the offenses.
Significantly, neither attorney explained to the jury in closing argument that it should
consider the lesser included offenses simultaneously. Instead, both the prosecutor and
defense counsel separately discussed first-degree murder, second-degree murder, and
voluntary manslaughter in that order, implying that the crimes should be considered
sequentially.

Moreover, the verdict form, which sequentially listed first-degree murder, second-
degree murder, and then voluntary manslaughter, did nothing to clarify the contradictory
instructions and more likely led the jury to consider the offenses sequentially.

We conclude under the facts of this case, that when the jury was given
contradictory instructions to consider the lesser included offenses of second-degree
murder and voluntary manslaughter both sequentially under a modified form of PIK
Crim. 3d 56.05, Alternative A, and simultaneously under PIK Crim. 3d 56.05, Alternative
B, and the remaining instructions, closing argument, and verdict form also led the jury to
consider the lesser offenses sequentially rather than simultaneously, a real possibility
exists that the jury would have rendered a different verdict had it been properly
instructed. Therefore, we reverse the Court of Appeals' decision affirming Miller's
conviction of second-degree murder, reverse Miller's conviction, and remand for a new
trial.

Finally, we note that Miller raised two sentencing issues in his petition for review.
In light of our decision remanding this case for a new trial, those remaining arguments
are moot.

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Reversed and remanded.