IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 95,682
STATE OF KANSAS,
Appellee,
v.
JASON D. OVERSTREET,
Appellant.
SYLLABUS BY THE COURT
1. No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects, distinctly stating the matter objected to and the grounds for the objection before the jury retires, unless the instruction is clearly erroneous. Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. Reviewing courts must consider the jury instructions as a whole and not isolate any one instruction in reaching a conclusion about the instruction's propriety.
2. For a defendant to be convicted of a specific intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal.
3. The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim.
4. The giving of the aiding and abetting foreseeability instruction in PIK Crim. 3d 54.06 in a case where the defendant is charged with attempted premeditated first-degree murder is clearly erroneous because it negates the State's burden to prove an essential element of the crime charged: premeditation. The fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.
5. In the circumstances of this case, where a prosecutor's comments on closing argument track the instructions of the district court, such comments do not amount to prosecutorial misconduct even though the instructions are erroneous.
6. Although this court has previously approved the use of PIK Crim. 3d 68.12 (the deadlocked jury instruction) and other similar instructions, it has indicated that it is much better to give such an instruction before the case is submitted to the jury for deliberations. The giving of a deadlocked jury instruction well into deliberations may be the basis for reversal if a reviewing court determines that the timing of the instruction had the effect of forcing the jury to reach a verdict.
7. The Sixth Amendment to the United States Constitution guarantees that in all criminal prosecutions the accused shall enjoy the right to have the assistance of counsel for his defense. The right to counsel guaranteed by this provision is the right to effective assistance of counsel.
8. To support a claim of ineffective assistance of counsel, a defendant must demonstrate (1) that counsel's performance was deficient, and (2) that counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.
9. The first prong of the test for ineffective assistance of counsel requires a defendant to show that counsel's representation fell below an objective standard of reasonableness, considering all the circumstances. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Courts must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.
10. Once a defendant has established counsel's deficient performance, the defendant also must establish prejudice by showing that there is a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.
11. When an evidentiary hearing has been conducted in the district court on claims of ineffective assistance of counsel, appellate courts determine whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The district court's legal conclusions are reviewed de novo.
Review of the judgment of the Court of Appeals in an unpublished opinion filed February 8, 2008. Appeal from Sedgwick district court; DAVID W. KENNEDY, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and the case is remanded for a new trial. Opinion filed January 30, 2009.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Matt J. Maloney, assistant district attorney, Wichita, argued the cause, and Nola Tedesco Foulston, district attorney, and Paul J. Morrison, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: Following a jury trial, Jason Overstreet was convicted of aggravated assault and attempted first-degree murder. Before the Court of Appeals, he claimed the following trial errors required reversal of his convictions: (1) instructional errors on aiding and abetting, (2) prosecutorial misconduct, (3) the granting of additional summation after jury deliberation had begun, (4) the giving of an additional instruction to resolve jury indecision after deliberation had begun, (5) ineffective assistance of counsel, and (6) improper conviction of two charges that were charged in the alternative. The Court of Appeals affirmed in an unpublished opinion. State v. Overstreet, unpublished opinion No. 95,682, filed February 8, 2008. We granted Overstreet's petition for review and now reverse and remand for a new trial.
Facts
Late in the evening on December 7, 2004, Damian McCall was in the drive-thru of a fast-food restaurant in Wichita when he noticed a green Chevy Tahoe pull up behind him. According to McCall, the driver of the Tahoe leaned out the window and looked at McCall's customized Ford Expedition. McCall thought the driver looked like a rapper named Chingy and mentioned this fact to his friend with whom he was talking on his cell phone.
McCall picked up his food and started to drive home. The Tahoe pulled out immediately behind McCall without stopping to pick up any food at the drive-thru window. McCall eventually got on to the highway and drove several miles until he took the Pawnee exit. The Tahoe remained behind McCall during this entire drive.
Shortly thereafter, McCall approached his apartment complex and backed into a parking spot so he could watch the Tahoe. The Tahoe turned into the parking lot and drove past McCall's Expedition; it then turned around and drove by McCall a second time. When the Tahoe reached the parking lot exit, it again turned around, blocking a truck that was nearby.
After turning around this second time, the Tahoe drove back toward McCall's vehicle and stopped. McCall saw a man jump out of the passenger side and run toward his Expedition. When he observed the man "reach and pull something" from his person, McCall lay flat in his vehicle in case it was a gun. The man fired several shots into the front of the Expedition. McCall was not hurt.
Once the shooting ceased, McCall sat up and saw the man running away. McCall put his Expedition in drive and rammed the Tahoe. McCall's vehicle flipped as a result of the collision, and the occupants of the Tahoe fled on foot.
When the police arrived at the scene, they found eight cartridge casings and two bullet fragments in the apartment complex parking lot. McCall's expedition had been struck by bullets six times: five bullets hit the front of the SUV on the driver's side, and one bullet struck the windshield on the passenger's side.
The police also found three cell phones inside the Tahoe and one on the grass outside the driver's door. One of the cell phones found inside the Tahoe on the front passenger-side floorboard belonged to Tracy Lafferty. Lafferty had loaned the cell phone to Jason Overstreet (the defendant in this case) the previous month, and it had never been returned.
Shortly after the incident, three men were apprehended at the nearby Wal-Mart: Kendrick Shears, James Walker, and Ishmel Agnew. Joshua Bauder and Tyler Mott--who had both been in the truck near the parking lot exit and had witnessed the shooting--identified Shears as the shooter and Walker as the driver of the Tahoe.
Police obtained fingerprints from three areas on the Tahoe. One print was found on the exterior of the driver's door, and two prints were found outside the passenger door. Tests matched the passenger-side prints to Shears, but none of the prints matched Agnew or Walker.
Further investigation ensued. During Detective Randall Reynold's interview of Ishmel Agnew, Agnew mentioned the name "Jason" in connection with his description of the events but did not provide a last name. Reynolds also interviewed Linda Dubois, who owned the Tahoe. Dubois informed Reynolds that she loaned the Tahoe to a man named "Jason" at her friend Jeff's house.
Reynolds later spoke with Jeffrey Fay, Dubois' friend, who indicated that the "Jason" discussed was Jason Overstreet. Fay testified at trial that he remembered Dubois lending Overstreet the Tahoe. According to Fay, Overstreet left in the Tahoe and returned with three or four black men, then left a second time.
Reynolds subsequently showed McCall a photo array that included Overstreet's picture and pictures of five other similar individuals, asking McCall whether any of these men were the driver of the Tahoe that had followed him home from the restaurant. McCall circled Overstreet's picture and wrote that Overstreet "resemble[d] the driver" but that McCall was "not one hundred percent sure."
Fingerprint analysis also matched Overstreet's prints with the fingerprint found on the Tahoe's driver's side door.
The State charged Overstreet with attempted first-degree (premeditated) murder or--in the alternative--aggravated assault, both based on an aiding and abetting theory.
At trial, McCall again identified Overstreet as the driver of the Tahoe, testifying that although he could not be 100 percent certain because it was dark on the night of the incident, he was "about 85, 90 percent sure." McCall based his identification of Overstreet on the fact that he had seen the driver lean out of the window in the drive-thru and on his observation of the Tahoe as it followed him in the parking lot of his apartment complex, which had some lighting outside the apartment building.
Because Overstreet was not found on the night of the shooting, no witnesses were able to identify him at the crime scene except the victim, based on observations earlier in the evening.
The State did not call Bauder or Mott as witnesses. Overstreet's defense counsel attempted to introduce Bauder's and Mott's identifications of Walker--not Overstreet--as the Tahoe's driver during the cross-examination of Detective Reynolds, but these identifications were excluded on the basis of hearsay. Overstreet's counsel subsequently moved the district court for a continuance, indicating that he intended to call Bauder and Mott as witnesses for the defense but had thus far been unable to locate them. The district court granted a continuance of the trial until the next morning to give defense counsel an opportunity to find the men.
Bauder testified for the defense the following morning. He explained that he "believe[d]" he identified Overstreet at the scene, but he was uncertain of that identification because he was focused primarily on the shooter, not the driver. After Bauder testified, defense counsel recalled Detective Reynolds, who testified that Bauder identified Walker--not Overstreet--as the driver on the night of the incident and that Overstreet had not been present at the time.
During deliberations, the jury submitted several questions for clarification to the district court and also requested the readback of trial testimony. On the morning of the second day of deliberations, the court asked the jury if it would benefit from additional summation from counsel. The jury requested summation on two points: (1) the intent of the shooter and (2) whether Overstreet had to be driving the Tahoe in order to be found guilty of the charges on an aiding and abetting theory. While defense counsel objected to the ground rules for the additional summation, there was no objection by either party to the additional summation, and both counsel agreed to provide additional argument on the requested topics.
Later on their second day of deliberation, the jury notified the court that it had reached a unanimous decision on the aggravated assault charge but was split on the attempted murder charge. With the consent of the parties, the court instructed the jury to continue with deliberations in an effort to reach a verdict. Shortly thereafter, the jury returned guilty verdicts on each of the alternative charges.
Before sentencing, Overstreet filed a pro se motion for a new trial that included several claims of ineffective assistance of counsel, among them an allegation that his defense counsel did not adequately prepare for trial since he did not locate Mott and did not adequately prepare Bauder as a witness, given Bauder's confusion as to his identification of the defendant at the crime scene.
Defense counsel also filed a motion for judgment of acquittal or for a new trial based, among other reasons, on the court's allowance of additional summation and the jury instruction provided on aiding and abetting.
The court denied both motions. The defendant was sentenced to 195 months in prison for the attempted first-degree murder conviction; the court did not impose a sentence on his aggravated assault conviction since the crimes were charged in the alternative, although this conviction was noted on the journal entry.
Overstreet's appeal was stayed, and the Court of Appeals remanded his case to the district court for a hearing on his ineffective assistance of counsel claims. After an evidentiary hearing, the district court concluded that he was adequately represented at trial. His convictions and sentence were affirmed, and we granted the defendant's petition for review.
(1) Aiding and Abetting Instruction
Overstreet argues that the district court's aiding and abetting instructions misstated the law in that the jury was advised it need not find beyond a reasonable doubt that Overstreet had premeditated the attempted murder. Overstreet also argues that the prosecutor committed reversible misconduct in his discussion of the aiding and abetting instruction during closing argument by claiming that the State need only prove that he was guilty of aggravated assault to show that he was also guilty of premeditated murder. The State claims--and the Court of Appeals agreed--that both the instructions given and the prosecutor's discussion of those instructions were proper.
Discussion
The State charged Overstreet with aggravated assault and attempted first-degree murder, both based on an aiding and abetting theory. At the close of evidence, the district court provided the following instruction to the jury on aiding and abetting:
"A person who, either before or during its commission, intentionally aids, abets or procures another to commit a crime with the intent to promote or assist in its commission, is criminally responsible for the crime committed regardless of the extent of the person's participation, if any, in the actual commission of the crime.
"A person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable."
As the prosecutor was discussing the jury instructions during his closing argument, he provided the following explanation of the aiding and abetting instruction:
"Now, Instruction Number 7, we told you--I told you that this is an aiding and abetting case, and Instruction Number 7 is the instruction that deals with aiding and abetting. I won't go over the whole thing, but I do [want to] emphasize a couple points.
"First, we have to show that Mr. Overstreet intentionally aided the shooter. We have to show that he actually did assist the shooter and that it was with the intent to promote or to assist a crime. So, you know, he can't be doing this accidentally or unintentionally. And, if those three things are present, then the law says, Instruction Number 7 says that he's responsible for the crime, just like if he did it. It says he's responsible regardless of the extent of his participation.
"And he's also responsible, not only for the crime that was intended to be committed but also for any other crime that's reasonably foreseeable. You've all heard the saying, In for a penny, in for a pound, and that's basically the concept here. You're in a little bit, you're in the whole way."
The prosecutor later explained his "in for a penny, in for a pound" comparison in more detail, stating:
"Now, one choice you have is aggravated assault. And the defendant is guilty of aggravated assault. A deadly weapon was used. Mr. McCall feared getting shot, obviously, common sense. He ducked down.
"He's also--the defendant is also guilty of aiding and abetting first-degree murder. He's guilty, even if this defendant only wanted to aid an aggravated assault. If someone in the jury room says, Well, yeah, he was the driver and he probably wanted to do an aggravated assault, doesn't matter, he's still guilty of attempted first-degree murder. And that's a very important point.
"Because attempted murder, I'd submit to you, is reasonably foreseeable when you go to commit an aggravated assault. And this goes back to our concept in for a penny, in for a pound."
At the end of the prosecutor's first portion of closing argument (before defense counsel gave his argument), the prosecutor concluded:
"[I]f he was the driver of this car, he is an aider and abettor, not only to aggravated assault but also to attempted first-degree murder. He hooked himself to the Kendrick Shears train, and he's gotta go where that train leads. That train committed attempted first-degree murder. I ask that you find the defendant guilty of that offense."
Overstreet claims that the combination of the language of the aiding and abetting instruction and the prosecutor's arguments regarding that instruction relieved the State of its burden of proving premeditation--an essential element of attempted premeditated murder--beyond a reasonable doubt. Overstreet bases his argument on this court's decision in State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), where we held that the giving of both PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06 (the two instructions given here) in the context of a premeditated first-degree murder case was error. The Court of Appeals in this case held that Engelhardt did not control and found no error with either the instructions given or the prosecutor's comments. See Overstreet, slip op. at 7-8, 15-16.
Instructional Error
We first address Overstreet's claim that the aiding and abetting instruction itself is reversible error because it relieved the State of its burden of proving an essential element of the crime charged. Overstreet did not object to the aiding and abetting instruction provided by the district court. Under K.S.A. 22-3414(3), no party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects, distinctly stating the matter objected to and the grounds for the objection before the jury retires, unless the instruction is clearly erroneous. Instructions are clearly erroneous "only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred. [Citation omitted.]" State v. Bell, 280 Kan. 358, 365, 121 P.3d 972 (2005). Reviewing courts must consider the jury instructions as a whole and not isolate any one instruction in reaching a conclusion about the instruction's propriety. See State v. Mays, 277 Kan. 359, 378-79, 85 P.3d 1208 (2004).
Initially, we note that the two paragraphs of the aiding and abetting instruction provided by the district court track the language in PIK Crim. 3d 54.05 (Responsibility for Crimes of Another) (first paragraph) and PIK Crim. 3d 54.06 (Responsibility for Crimes of Another--Crimes Not Intended) (second paragraph). The language in the instruction given is also almost identical to the statutory description for aiding and abetting contained in K.S.A. 21-3205:
"(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
"(2) A person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended."
This court has approved each of these instructions individually as correct statements of K.S.A. 21-3205. See State v. Gleason, 277 Kan. 624, 636-38, 88 P.3d 218 (2004) (approving PIK Crim. 3d 54.06); State v. Manard, 267 Kan. 20, 34, 978 P.2d 253 (1999) (approving PIK Crim. 3d 54.05). In Engelhardt, however, we held that it was error to provide both of these instructions when the underlying crime required a specific showing of intent. See 280 Kan. at 131-34.
The defendant in Engelhardt was convicted of aiding and abetting premeditated first-degree murder. Just as in this case, the district court provided both instructions on aiding and abetting: PIK Crim. 3d 54.05 and PIK Crim. 3d 54.06. The defendant argued that by providing PIK Crim. 3d 54.06 (the foreseeability instruction), the district court impermissibly lowered the State's burden of proof on the element of intent since the instruction stated that the prosecution only had to show that the murder was a foreseeable consequence of another criminal act--not that it was premeditated. 280 Kan. at 132-33. We agreed that the instruction negated the intent element of premeditated murder:
"The specific intent required to be proved for conviction on a premeditated first-degree murder charge is premeditation. Therefore, under K.S.A. 21-3205(1), a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation to murder the victim." 280 Kan. at 132.
Nevertheless, this court ultimately held in Engelhardt that although it was error for the district court to give the foreseeability instruction contained in PIK Crim. 3d 54.06, the error was harmless in light of the overwhelming evidence against the defendant. See 280 Kan. at 133-34.
Our decision in Engelhardt controls our resolution in this case. As in Engelhardt, Overstreet was charged in this case with a specific-intent crime under an aiding and abetting theory. Therefore, the State was required to prove beyond a reasonable doubt that he "intend[ed] to promote or assist" in the commission of an attempted first-degree premeditated murder. Engelhardt, 280 Kan. at 131; see K.S.A. 21-3205(1). Engelhardt makes it clear that to be successful on this theory, the State was required to prove that the defendant shared in the specific intent of premeditation and thus promoted or assisted in the commission of the specific crime of premeditated first-degree murder.
Despite this premeditation requirement, the district court instructed the jury in this case that "[a] person who intentionally aids another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable." This foreseeability instruction indicated that the jury need not find that Overstreet possessed the specific intent of premeditation if it found that premeditated murder was a reasonably foreseeable consequence of aggravated assault. In other words, giving the aiding and abetting foreseeability instruction negated the State's burden to prove an essential element of the crime charged: premeditation. This diminished burden is precisely the type of error disproved in Engelhardt. See 280 Kan. at 132. The district court erred when it provided the foreseeability instruction in this case.
In addition, the foreseeability instruction is inappropriate in a premeditated murder case on the basis of logic. Premeditation does not require that a murder (or attempted murder) be reasonably foreseeable; the only relevant question is whether the defendant thought about the murder before engaging in the intentional homicidal act. See State v. Hoge, 276 Kan. 801, 814-15, 80 P.3d 52 (2003). Conversely, the mere fact that an act is foreseeable does not mean that the defendant has premeditated his or her actions. See Engelhardt, 280 Kan. at 133. In short, the fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.
The Court of Appeals erroneously concluded that the State did not need to prove beyond a reasonable doubt that Overstreet premeditated McCall's attempted murder, but needed only show that he attempted to assist the shooter in the original assault. Overstreet, slip op. at 7-9.
In reaching its conclusion, the Court of Appeals relied on a portion of this court's opinion in State v. DePriest, 258 Kan. 596, 907 P.2d 868 (1995), where we explained that "to find the defendant guilty of aiding and abetting first-degree murder, the jury was required to find that a first-degree murder had been committed and that the defendant aided and abetted that murder with the intent to assist in its completion." 258 Kan. at 603; see Overstreet, slip op. at 8. Contrary to the Court of Appeals' application, DePriest does not stand for the proposition that "the requisite intent for aiding and abetting liability in a first-degree murder case is the intent to aid and abet the murder with the 'intent to assist its completion,'" rather than premeditation. Overstreet, slip op. at 8 (quoting DePriest, 258 Kan. at 603). DePriest explained that in order to convict a defendant of premeditated murder on an aiding and abetting theory, the jury is required to find (1) "that a first-degree murder had been committed" and (2) "that the defendant aided and abetted that murder." (Emphasis added.) 258 Kan. at 603. In other words, the jury must find that the defendant intentionally aided and abetted a premeditated first-degree murder. This showing necessarily requires a finding of premeditation on the part of the aider/abettor. See Engelhardt, 280 Kan. at 132-33.
DePriest and Engelhardt are consistent with the numerous other cases decided by this court holding that for a defendant to be convicted of a specific-intent crime on an aiding and abetting theory, that defendant must have the same specific intent to commit the crime as the principal. See State v. Schriner, 215 Kan. 86, 92, 523 P.2d 703 (1974) (quoting State v. Edwards, 209 Kan. 681, 498 P.2d 48 [1972]) (stating that K.S.A. 21-3205 "'makes no change in the degree of proof of intent necessary to establish criminal responsibility'").
Overstreet failed to object to these instructions, and in accord with our standard of review, we must determine whether there is a real possibility that the jury would have rendered a different verdict if the foreseeability instruction had not been given. K.S.A. 22-3414(3); see Bell, 280 Kan. at 365 (citing State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 [2003]).
The Court of Appeals concluded that even if any error may have arisen from the aiding and abetting instructions, the error was harmless in light of the other instructions given--in particular, the instruction on attempted premeditated first-degree murder, which stated:
"The defendant, Jason Overstreet, is charged in count one with the crime of attempt to commit the crime of first degree murder. Mr. Overstreet pleads not guilty.
"To establish this charge, each of the following claims must be proved:
1. That Mr. Overstreet aided or abetted someone who performed an act toward the commission of the crime of first degree murder;
2. That he did so with the intent to aid or abet someone to commit the crime of first degree murder;
3. That he failed to complete the commission of the crime of first degree murder; and
4. That this act occurred on or about the 7th day of December, 2004, in Sedgwick County, Kansas.
"The elements of first degree murder would be:
1. That someone intentionally killed a human being;
2. That such killing was done with premeditation; and
3. That this act occurred on or about the 7th day of December, 2004, in Sedgwick County, Kansas.
"Premeditation means to have thought the matter over 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."
Standing alone, this instruction indicates that to render a verdict of guilty on the attempted premeditated first-degree murder charge, the jury was required to find that the defendant acted with premeditation. Yet this instruction does not overcome the confusion that was injected into this trial by the district court's instruction on foresee