State v. Phillips

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 103,399

STATE OF KANSAS,
Appellee,

v.

KELVIN PHILLIPS, JR.,
Appellant.


SYLLABUS BY THE COURT


1.
A defendant's claim that a trial court's failure to formally order or declare a
mistrial violates his or her constitutional right to be protected from double jeopardy can
be reviewed on appeal even if the defendant failed to raise the error before the trial court.

2.
The Kansas criminal mistrial statute, K.S.A. 22-3423, does not require a trial court
to use specific words in ordering or declaring a mistrial. Consequently, even if a trial
court does not use the terms "order" or "declare," the trial court effectively declares a
mistrial by stating the jury is deadlocked, discharging the jury, and scheduling the case
for a second trial.

3.
When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.
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4.
Premeditation, deliberation, and intent may be inferred from the established
circumstances of a case, provided the inferences are reasonable. Factors that give rise to
an inference of premeditation include: (1) the nature of the weapon used; (2) the lack of
provocation; (3) the defendant's conduct before and after the killing; (4) any threats
and/or declarations of the defendant before and during the occurrence; and (5) the dealing
of lethal blows after the deceased was felled and rendered helpless. The analysis of what
inferences can be reasonably drawn is not driven by the number of factors present in a
particular case because in some cases one factor alone may be compelling evidence of
premeditation. Use of a deadly weapon by itself, however, is insufficient to establish
premeditation.

5.
A prosecutor's statement that premeditation can occur in half a second is contrary
to established caselaw and is prosecutorial misconduct.

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed May 23, 2014.
Affirmed.

Gerald E. Wells, of Lawrence, argued the cause and was on the brief for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: After a trial ended with a hung jury, Kelvin Phillips, Jr. was retried
and convicted of the premeditated first-degree murder of James Earl Dyer, Jr.; conspiracy
to commit first-degree murder; and criminal possession of a firearm. On direct appeal
from Phillips' second trial, we consider the three issues Phillips raises. First, we hold that
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the Kansas criminal mistrial statute, K.S.A. 22-3423, does not require the use of specific
words in order for a mistrial to be recognized or to preserve a defendant's constitutional
right to be protected from double jeopardy. Consequently, we reject Phillips' contention
that the trial court violated his constitutional right against double jeopardy when it
allowed him to be retried for the same crimes without explicitly declaring or ordering a
mistrial at the conclusion of his first trial. Second, we conclude there was sufficient
evidence, when viewed in the light most favorable to the State, to affirm Phillips'
conviction for premeditated first-degree murder. Finally, we hold that the prosecutor
committed misconduct during closing argument by misstating the legal definition of
"premeditation," but we conclude the misconduct did not deprive Phillips of a fair trial.
Consequently, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Dyer died from gunshot wounds he suffered on August 10, 2007, in Topeka.
Phillips and three other individuals—Corky A. Williams; Drake Kettler, Jr.; and Antonio
Armstrong—were charged with and convicted of crimes related to Dyer's death. All four
defendants appealed, and their individual appeals were argued the same day. For these
related opinions, see State v. Williams, 299 Kan. ___ (No. 103,785, this day decided);
State v. Kettler, 299 Kan. ___ (No. 103,272, this day decided); and State v. Armstrong,
299 Kan. ___ (No. 103,120, this day decided).

The appeals of Williams, Kettler, and Phillips, who were tried jointly, raise many
of the same issues. Consequently, our opinions in these cases are largely repetitive. We
have followed this format for the ease of reading only one opinion; the reader will not
need to refer to multiple opinions. For the benefit of anyone who wishes to read all three
opinions, we offer as a guide that Williams has asserted the most issues. Kettler and
Phillips have repeated some of those issues, making either identical or substantially
similar arguments. Phillips does, however, present an issue not raised by Kettler or
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Williams—his first issue, which relates to the procedure for declaring a mistrial. Also,
although Williams, Kettler, and Phillips all raise issues regarding the sufficiency of the
evidence and the prosecutor's misstatement of the definition of "premeditation" during
the closing argument, there is some variance in the analysis because of each individual's
role in the shooting of Dyer. The decision in Armstrong's appeal does not have the same
level of overlap, and some factual details differ because of the variance in evidence in his
separate trial.

Procedural History

The charges against the four defendants were not identical. Phillips, like Kettler
and Williams, was charged with premeditated first-degree murder, in violation of K.S.A.
21-3401(a); conspiracy to commit first-degree murder, in violation of K.S.A. 21-3302
and K.S.A. 21-3401; and criminal possession of a firearm, in violation of K.S.A. 21-
4204(a)(4)(A). Armstrong was also charged with premeditated first-degree murder and
criminal possession of a firearm.

Armstrong's case took a different procedural track when, before any of the
defendants' preliminary hearings, he decided to cooperate with the State in exchange for a
favorable plea agreement. Initially, in Armstrong's first contact with investigating law
enforcement officers, he denied any knowledge of or involvement in the shooting. Later,
in his attempt to obtain the plea agreement, he gave a sworn deposition-style statement to
the district attorney in which he incriminated himself and implicated the three other
defendants in the premeditated killing of Dyer. Based on this statement and as part of
Armstrong's plea arrangement, the State called Armstrong as a witness at a joint
preliminary hearing related to the charges against Williams, Kettler, and Phillips.
Armstrong reiterated the truthfulness of his sworn statement and testified that he had
joined with Williams, Kettler, and Phillips in a plan to find and shoot Dyer.

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Before Williams, Kettler, and Phillips were brought to trial, Armstrong changed
his mind about cooperating with the State and recanted his statements and testimony,
even though he lost his plea deal. In a notarized affidavit drafted by Armstrong, he stated
that his former defense counsel coerced him into making his prior statements implicating
his friends.

Subsequently, Armstrong's case was joined with the cases of Williams, Kettler,
and Phillips for the purposes of a jury trial. The resulting joint trial ended with a hung
jury. After the first trial, the trial court severed Armstrong's case from the others, and his
second trial took place before the three other codefendants again went to trial. Armstrong
testified at his second trial, providing yet another version of how Dyer was shot.
Armstrong was convicted of premeditated first-degree murder and criminal possession of
a firearm, the only charges brought against him.

The State then called Armstrong to testify at the joint second trial of Williams,
Kettler, and Phillips. Armstrong testified that both his sworn statement and his
preliminary hearing testimony against the other defendants were untrue. Armstrong
explained that he had incriminated his friends because he was led to believe that "my
homeboys, my brothers, was testifying on me, which I found out later was a lie." He also
told the jury that he had just reiterated a story the prosecutor had fed him. Armstrong's
explanation was refuted by Armstrong's attorney, who testified that Armstrong was not
told what to say in his sworn statement.

Although Armstrong was called as a witness for the State at the trial of Williams,
Kettler, and Phillips, he was declared a hostile witness. During his testimony, Armstrong
wore a mask to prevent him from spitting on the law enforcement officers who
transported him to the courtroom or on those in the courtroom. He often cursed, and he
usually either refused to answer questions or was evasive and claimed he could not
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remember details. Eventually, on redirect examination, Armstrong became so belligerent
and uncooperative with the prosecutor that he was removed from the courtroom.

As this history suggests, the jury was presented with multiple versions of the
events that led to Dyer's death. In addition to Armstrong's various renditions of what
happened, both Williams and Phillips testified at their second trial and offered slightly
different versions of events. Plus, approximately a month before the second joint trial,
Phillips proffered the substance of his trial testimony in order to obtain some pretrial
evidentiary rulings; the jury would learn that some details included in the proffer differed
from Phillips' trial testimony. Kettler chose not to testify. The jury also heard the
testimony of several individuals who witnessed some portion of the events, investigated
the crimes, or had information about the relationship of Dyer and the defendants. Because
Phillips attacks the sufficiency of the evidence against him—at least with respect to the
first-degree murder charge—we will discuss the evidence in some detail.

Dyer's Conflict with the Defendants

Through the testimony of several witnesses—including Williams and Phillips—
and Armstrong's sworn statement, the jury learned of a dispute between Williams and
Dyer that occurred several weeks before Dyer's death. During this altercation, an
argument escalated and ended with Dyer and his friend, Ryland Patton, robbing Williams
at gunpoint. Patton testified that after the robbery, Williams issued a challenge by
telephoning and saying, "It's on." Patton's testimony was countered by Williams, who
told the jury he had decided just to stay away from Dyer and Patton. He denied that
Dyer's death had anything to do with the prior encounter.

In turn, Williams' testimony was contradicted by Armstrong's sworn statement and
the preliminary hearing testimony of Armstrong. According to that version of events,
Williams told Armstrong and Kettler about the robbery immediately after it happened.
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The three men decided they would be on the lookout for Dyer and his friends. When
Armstrong was asked whether there were any plans made to search for Dyer, Armstrong
replied, "No. Just—just when we—when we saw him, shoot him." Armstrong was asked
if that agreement would apply "to any of the three of you?" He answered, "Any of us . . . .
I'm not going to lie, I wanted to do it because not too—not too long after that, just a
couple of days after that . . . somebody shot . . . [a friend's house] and grazed me on my
arm." Armstrong believed Dyer and Patton were the shooters.

Phillips did not participate in these discussions because he was in jail.
Nevertheless, according to Armstrong, Kettler informed Phillips of the plan by speaking
to Phillips in "code" during a telephone conversation. As it turned out, Phillips was
released from jail the same day as Dyer was shot. According to Armstrong, Phillips
joined in the plan to find and shoot Dyer. Armstrong stated that when they found Dyer,
they wanted to "[b]low his head off."

Phillips Spots Dyer; Other Defendants Join Him

Within hours of Phillips' release from jail, he spotted Dyer and Dyer's girlfriend,
Teri Johnson, outside a liquor store and an adjoining smoke shop. Johnson testified that
she and Dyer had walked to the liquor store where they ran into some people they knew,
Rhonda Shaw and Leonard Mun. Johnson asked Shaw for a ride, and Shaw agreed. While
Shaw shopped, Johnson walked from the liquor store toward Shaw's car. At that point,
Phillips approached Johnson and asked if she was "straight," meaning did she need to buy
any drugs. Johnson told him she did not. As Johnson got into the car, where Mun and
Dyer were already sitting, Phillips told her to take his phone number and to call if she
needed something.

Phillips testified that, after talking to Johnson, he talked to Shaw and asked her
whether she wanted to purchase some drugs. Shaw indicated she had some money at her
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house, so she would buy drugs if Phillips stopped by. Phillips told Shaw he would be
there within 5 to 10 minutes.

According to Phillips, after Shaw's vehicle pulled away, Phillips called Kettler,
and Kettler and Armstrong met him in the alley behind the liquor store and smoke shop.
They ran down the alley because Phillips was in a hurry to get to Shaw's house so that
another drug dealer would not beat him to the sale. Kettler then called Williams to ask for
a ride to Shaw's house.

Williams also testified that Kettler called him and asked Williams to give Kettler,
Phillips, and Armstrong a ride to Shaw's house. According to Williams, he had been with
Kettler and Armstrong earlier in the day. He explained that he had picked up Kettler,
Armstrong, and another friend and they drove around for about 30 minutes. Then, Kettler
and Williams installed a CD player in Williams' car, while the others were "sitting around
talking." Later, the group went their separate ways until Williams picked up the others to
take them to Shaw's house. He explained that he was told the men wanted to go to Shaw's
house because she owed Kettler some money and Phillips was going to sell her drugs.

According to Armstrong's sworn statement, Kettler and Williams had picked him
up earlier in the day and the three were still together when Phillips called. Like Williams,
Armstrong stated that Kettler and Williams had installed a CD player in Williams' car,
but Armstrong also indicated that while doing so they had hidden a gun behind the CD
player. Armstrong explained, "Like where the CD player is in Oldsmobile Delta's [sic]
you can take that whole part out, the whole vent part out and you can fit a nice size gun in
there." Armstrong described the hidden gun as a "9 mm Ruger." There was evidence at
the trial suggesting that this gun was later used to shoot Dyer.

Once Williams and Kettler finished installing the CD player, according to
Armstrong, the three men began driving around. Phillips called Kettler, and Kettler then
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told the others that Dyer "is at the smoke shop. Get there. And then [Kettler] opened the
vent and pulled a gun out of the vent." Williams drove directly to the alley behind the
store, which Armstrong said was merely 30 seconds or so away from where they were.
Once they were near the store, Armstrong and Kettler jumped out of the car and started
running down the alley. Phillips ran toward them and told them Dyer was on his way to
Shaw's house. They turned and ran back toward Williams' car.

The timing of Armstrong's version of events meshes with Johnson's account. She
saw Phillips and three or four other people running down the alley behind the liquor store
as Shaw drove away.

Events at Shaw's House, According to Johnson and Mun

Once Shaw, Mun, Dyer, and Johnson arrived at Shaw's house, they carried beer
inside and began hanging out. About 5 to 10 minutes after they sat down, Shaw's home
phone rang. Shaw answered the phone and simply said, "Yeah, yeah," and then passed
the phone to Mun. According to Mun, there was nobody on the other end, so he hung up.
Other evidence suggested that either Phillips or Kettler used Phillips' cell phone to call
Shaw to verify whether Dyer was at her house. Mun indicated that shortly after the phone
call, Shaw asked Dyer if he was J.D., to which Dyer answered, "Yes."

Within a couple minutes of the phone call, there was a knock at Shaw's front door.
Mun walked up to the door and asked, "Who is it?" The person on the other side
responded, and Mun told the others it was "Little Man," which was Kettler's nickname.
When Dyer heard "Little Man," he jumped up and left the room.

Mun looked out the window and did not initially see anyone. When he opened the
door, Mun heard someone coming around the side of the house, asking why he had not
answered more quickly. As the man approached Shaw's front door, Mun recognized him
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as Kettler. Phillips and Armstrong came toward the front door from the side of the house,
and the three men ran into the house. Phillips approached Johnson and asked something
like, "[W]here's he at, Bitch?" apparently meaning Dyer. Johnson acted like she did not
know who Phillips was looking for because she "didn't want [Phillips] to do nothing to
[Dyer]." Phillips then turned around and walked out the front door.

Seconds later, Phillips returned to the house. According to Johnson, Kettler and
Armstrong were with him, and all three men had guns when they walked past her and
moved toward the back of the house. Johnson immediately ran out of the house to get
help.

Mun, who remained outside the front door, did not see guns when the group,
which, according to him, now included Williams, walked into the house the second time.
Mun testified that he heard "tussling" and "wrestling" sounds coming from inside Shaw's
house. He stepped inside and saw one of the men pick up a drinking glass and glass
ashtrays and throw them into the bedroom. Then Mun heard the "pop, pop, pop" sound of
gunshots and watched the four men run out of the house. When Mun looked into the
bedroom, he saw Dyer lying on the floor, unresponsive.

Meanwhile, Johnson ran to a neighbor's house and knocked on the door. When the
neighbor responded, Johnson asked her to call law enforcement. Johnson then heard
gunshots, so she ran back to Shaw's house. As she approached, Johnson saw the same
men run out of Shaw's house, jump into a brown car, and drive away. This car was later
identified as Williams' car.

Johnson went inside Shaw's house and found Dyer lying on the bedroom floor,
bleeding and unresponsive. Dyer had been struck by two bullets, one of which entered
through his arm and pierced his heart. In addition to the bullet wounds, Dyer suffered
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head wounds and a bite mark on his left shoulder. An expert opined that Phillips was the
probable biter.

The jury did not hear Shaw's versions of events because she had passed away
before the first trial, and, as we have noted, Kettler chose not to testify. But, just as
Williams, Phillips, and Armstrong provided different versions of what happened before
the men got to Shaw's house, they provided very different accounts of what occurred
once they arrived.

Williams' Version

According to Williams, he drove over to Shaw's house with Kettler, Phillips, and
Armstrong because Shaw owed Kettler money and because Phillips said "he needed to
take care of some business over there," meaning a drug deal. When they pulled up at
Shaw's house, Williams dropped off the other men. He then drove past the house before
turning around and coming back to park. Williams said he was parked about a minute
when Kettler came out the front door and got into Williams' car. Then Williams heard
gunshots coming from inside Shaw's house. Seconds later, Williams saw Phillips and
Armstrong running out of the house. When they got into the car, Williams noticed "a few
blood spots" on Phillips' shirt. Williams asked, "What's going on?" but they just told him
to "drive off." So Williams drove over to the home of Latoya Austin, Armstrong's
girlfriend.

Williams testified that he did not see a gun, but when they went inside Austin's
house he heard Austin tell Armstrong to "get that out of here," referring to the gun
Armstrong was then holding. Williams saw Armstrong leave the house for a couple
minutes, presumably to get rid of the gun. Then Armstrong started talking about what had
happened at Shaw's house and indicated that Phillips shot Dyer. Phillips and Armstrong
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talked about "tussling over the gun" with Dyer. They told Williams that Dyer tried to get
the gun from Phillips and Dyer had hopped on Phillips' back.

Phillips' Version

Phillips' testimony was consistent with Williams', at least in many respects.
According to Phillips, his "whole intention was to go over there [Shaw's house] to bust a
serve," which he explained meant to complete a drug sale. Phillips denied having any
discussion before arriving at Shaw's house about settling a score with Dyer. In fact,
according to Phillips, he did not know about Dyer's robbery of Williams until after Dyer's
death. On the way to Shaw's house, Phillips called Shaw to make sure she and Mun were
there. Phillips testified that he did not see any guns and did not know whether Williams
had hidden a gun in the dashboard of the car.

Phillips said Kettler went up to Shaw's house first, knocked on the door, and
announced that it was "Little Man." Mun, who answered the door, mentioned that Dyer
had run out the back. Phillips indicated he was not sure why Mun told them about Dyer.
Armstrong then went around the side of the house, and Phillips and Kettler went inside.
After Phillips completed his drug sale, Armstrong entered the house and began asking
where Dyer was because he had not found Dyer behind the house. Next, Armstrong ran
through the house, toward the back rooms, and Johnson stood up and ran out the front
door. Phillips testified that he tried to get Armstrong to leave, but then he heard "some
tussling" and saw Dyer and Armstrong wrestling over a gun. Phillips did not know who
brought the gun to Shaw's house, but he assumed it was Armstrong; he specifically
denied carrying a gun into Shaw's house himself.

Phillips told the jury that he was not going to let Dyer hurt his friend, so he tried to
break up the fight. When his initial efforts did not work, Phillips started hitting Dyer "in
his face area." These efforts did not stop Dyer, so Phillips grabbed an ashtray out of the
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living room and hit Dyer over the head several times. Phillips also bit Dyer. During this
time, according to Phillips, Kettler also tried to break up the fight. At some point, Kettler
yelled, "'Come on, let's get out of here. We didn't come over here for this." Kettler then
ran toward the front of the house, and Phillips assumed Kettler left.

As the struggle continued, Dyer dropped the gun. Phillips picked it up, but in the
process the gun went off. Phillips ran into the bedroom, and Dyer jumped on his back.
This caused Phillips to stumble and "[t]wo shots went off." Phillips broke lose from Dyer,
and as Dyer "was falling, I let like two more shots go." Phillips testified that the gun was
still in his hand when he got into Williams' car and he threw it on the back seat. When
asked whether it was his intention to shoot Dyer, Phillips testified, "No, it wasn't. I had
no reason to. I don't believe I would have had a reason. That's not my style."

Armstrong's Versions

Armstrong's sworn statement included some of the same details. There were
significant differences, however, including his explanation of why the four went to
Shaw's house, which was to "[b]low Dyer's head off." He also stated that he initially
carried the gun that had been removed from the dash of Williams' car, but, after the men
could not find Dyer in Shaw's backyard, Phillips grabbed the gun from Armstrong and
entered the house. Armstrong, Kettler, and Williams followed. The fight initially
involved Kettler, Phillips, and Dyer, while Williams stood nearby. During the struggle,
Kettler had Dyer briefly subdued, but then Dyer got loose and jumped on Phillips' back.
At that point, Armstrong started hitting Dyer's head with a glass ashtray and Dyer fell.
After Dyer hit the floor, Phillips "backed up and I [Armstrong] started backing up just to
make sure that, you know, . . . wasn't no chance I would get hit by the bullets because I
already knew what was about to happen at that split second and that's when [Phillips] just
started shooting." Phillips "was shooting to kill, but it was like he was kind of shooting
kind of wild . . . like he was just trying to hit him everywhere." After the shots were fired,
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Phillips ran out of the house. Armstrong followed him and saw Kettler in the kitchen
doorway with a knife. Armstrong stated that after the struggle moved from the bathroom
to the bedroom, Kettler went to the kitchen. "I guess before he got the knife, [Phillips]
shot [Dyer]."

A transcript of Armstrong's testimony from his own, separate trial was also
admitted into evidence at the trial of Williams, Kettler, and Phillips. This version of
events put yet another spin on the facts. Armstrong indicated that he, Williams, Kettler,
and Phillips went to Shaw's house to collect money that Shaw owed to Kettler. After all
four men went into the house and Shaw paid Kettler, they heard the sound of a curtain
being snatched back and saw Dyer "came out [of] the bathroom with a black gun in one
hand and a silver gun in the other." Dyer said, "[Y]ou-all drop out," meaning everyone
give him their "property." Phillips was able to hit Dyer "so hard that one gun flew out of
his hand and hit the wall so hard that the clip fell out of it." Kettler and Phillips "lunged
after the other gun." After wrestling around and after Armstrong hit Dyer on the head
with an ashtray, Phillips tried to run away, but Dyer ran after Phillips and "grabbed him
by the back of his neck." So Armstrong grabbed Dyer and hit him again three times,
causing Dyer to drop to the floor. That is when Phillips "came out of nowhere" and
"started shooting" at Dyer. Phillips, Kettler, and Armstrong ran out of the house.

On Armstrong's way out of the house, he saw Williams leaning down to pick up
the first gun that Dyer had dropped. He did not see what happened to the gun after that.
Williams followed Armstrong out of the house, and the four friends drove away in
Williams' car. According to Armstrong, they did not plan to kill Dyer: "We did not go
over there intending to kill him. We didn't have a gun to go over there to kill him with.
He got shot with his own gun."



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Other Evidence

In other evidence, jurors heard from some of Shaw's neighbors who described a
car that matched the description of Williams' car as being near Shaw's house at the time
of the shooting. One couple was following Williams' car through the neighborhood. They
reported seeing three men get out of the car and approach Shaw's house; one of the men
walked to the door and the others ran around the side of the house, which made the
couple suspicious. Meanwhile, the driver pulled forward, turned around, and parked. The
description of the driver they provided was consistent with Williams' appearance. After
the shooting, another neighbor saw "three or four" men run out of Shaw's house and get
into a parked car.

The jurors also heard the testimony of Renee Stewart, who testified that Williams
and Kettler came to her house the night Dyer was shot. Based on things that were said,
Stewart concluded Williams had shot someone. She reported that he seemed very
nervous, and he wiped down a 9 mm pistol and some ammunition and asked her to hide
the gun. She later sold the gun for drugs. She also indicated that several days before the
shooting she had given Kettler and Williams a ride and Kettler had left a box of 9 mm
ammunition in the glove box. Law enforcement officers testified they found the
ammunition as described by Stewart; a few bullets were missing from the box and the
ammunition matched the type and brand of the fired bullets recovered from Dyer's body
and Shaw's house.

After weighing all the evidence, the jury convicted Phillips of premeditated first-
degree murder, conspiracy to commit first-degree murder, and criminal possession of a
firearm. Phillips filed a timely appeal, over which this court has jurisdiction under K.S.A.
22-3601(b)(1) (off-grid crime; maximum sentence of life imprisonment imposed).


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MISTRIAL DID NOT RESULT IN DOUBLE JEOPARDY

Phillips argues his second trial violates the Double Jeopardy Clauses of the Fifth
Amendment to the United States Constitution, which applies to the states through the
Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights. Both
provisions protect a criminal defendant from multiple prosecutions for the same offense.
See Oregon v. Kennedy, 456 U.S. 667, 671, 102 S. Ct. 2083, 72 L. Ed. 2d 416 (1982);
State v. King, 297 Kan. 955, 970, 305 P.3d 641 (2013); Hudson v. State, 273 Kan. 251,
253, 42 P.3d 150 (2002). Since 1824, however, it has been established that "a failure of
the jury to agree on a verdict [is] an instance of 'manifest necessity' which permit[s] a
trial judge to terminate the first trial and retry the defendant [without violating the Double
Jeopardy Clause], because 'the ends of public justice would otherwise be defeated.'
[United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)]." Richardson
v. United States, 468 U.S. 317, 323-24, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984).

Phillips recognizes that a deadlocked jury creates a manifest necessity for a
mistrial, and he does not question the appropriateness of a mistrial ruling in his first case.
In fact, he admits: "[I]t is clear that a mistrial was necessary because the jury was
hopelessly deadlocked." Instead, Phillips is concerned solely with the mechanism
triggering the State's ability to retry him. He contends the Kansas criminal mistrial
statute, K.S.A. 22-3423, requires an oral pronouncement from the bench in which the trial
court actually "declares" or "orders" a mistrial. He points to the record in this case and
notes that the trial judge never articulated a pronouncement of a mistrial using specific
language, such as, "I declare a mistrial" or "I order a mistrial."

The record supports Phillips' argument. It reflects that the trial court brought the
jury into the courtroom, and the presiding juror informed the court that the jury was
"deadlocked." The court then addressed the jurors, telling them, in part: "You have now
completed your duties as jurors in this case, and you're discharged with the thanks of the
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Court." In other comments to the jurors, the trial court repeatedly used the word
deadlocked, the same word that had been used by the presiding juror. Then, outside the
presence of the jury, the court discussed the scheduling of a retrial. The court did not
formally declare a mistrial during the proceedings on the record.

Despite the clear termination of the trial, the discharge of the jury, and the
scheduling of a second trial, Phillips argues the failure to formally order a mistrial as
required by K.S.A. 22-3423 means the second trial violated his right to be protected from
double jeopardy.

Preservation Issue

The State raises a preliminary question of whether this court should even address
the merits of Phillips' double jeopardy argument because Phillips did not raise an
objection in either trial—at the close of the first trial or the beginning of the second
trial—regarding a mistrial ruling (or lack thereof) and double jeopardy.

Generally, a theory not asserted before the trial court—even an issue raising a
constitutional question—cannot be raised for the first time on appeal. Pierce v. Board of
County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967); accord State v.
Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). There are three exceptions to the rule: (1)
The newly asserted theory involves only a question of law arising on proved or admitted
facts and is determinative of the case; (2) consideration of the theory is necessary to serve
the ends of justice or to prevent the denial of fundamental rights; and (3) the district court
is right for the wrong reason. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010);
see Pierce, 200 Kan. at 80-81.

Phillips relies on the second exception and asks this court to consider whether the
double jeopardy prohibition barred his second trial; doing so, according to Phillips, would
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serve the ends of justice and prevent the denial of a fundamental right. Under the second
exception, this court has previously considered allegations of double jeopardy violations
that were raised for the first time on appeal when the issue has been the multiplicity of
convictions. See, e.g., State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013); State v.
Harris, 284 Kan. 560, 569, 162 P.3d 28 (2007); State v. Groves, 278 Kan. 302, 303-04,
95 P.3d 95 (2004), overruled on other grounds by State v. Schoonover, 281 Kan. 453,
133 P.3d 48 (2006). We have also considered Double Jeopardy Clause violations for the
first time on appeal where a defendant questions a trial court's decision to declare a
mistrial, although the standard of review is altered because of the lack of objection. See
State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004) (where defendant does not
object or consents to mistrial, the "'manifest necessity'" standard has no place in
application of Double Jeopardy Clause and the Clause is implicated only if the
"'prosecutorial conduct giving rise to the mistrial intended to "goad" the defendant to
move for a mistrial'").

Graham and similar cases are not a perfect analog for this case, where Phillips
asserts a procedural defect in the manner the first trial was terminated rather than a
substantive argument about the justification for the mistrial. Nevertheless, these cases
indicate that appellate review of a potential Double Jeopardy Clause violation can happen
under the second preservation exception, even if there was not a trial objection.

Furthermore, there is no impediment to our consideration of Phillips' arguments
for the first time on appeal because the issue of whether there is a double jeopardy
violation under either the Double Jeopardy Clause of the Fifth Amendment to the United
States Constitution or § 10 of the Kansas Constitution Bill of Rights is a question of law
subject to unlimited review. State v. Gaudina, 284 Kan. 354, 369, 160 P.3d 854 (2007);
Schoonover, 281 Kan. 453, Syl. ¶ 1. Likewise, an unlimited standard of appellate review
is applied to the interpretation and construction of statutes, including the mistrial statute,
K.S.A. 22-3423. See King, 297 Kan. at 971. Consequently, we consider the question of
19

double jeopardy de novo, and our consideration is not dependent on findings or
conclusions of the trial court.

Requirements of Mistrial Statute

K.S.A. 22-3423, the mistrial statute on which Phillips relies, provides in pertinent
part:

"(1) The trial court may terminate the trial and order a mistrial at any time that
he finds termination is necessary because:
. . . .
(d) The jury is unable to agree upon a verdict;
. . . .
"(2) When a mistrial is ordered, the court shall direct that the case be retained on
the docket for trial or such other proceedings as may be proper and that the defendant be
held in custody pending such further proceedings, unless he is released pursuant to the
terms of an appearance bond." (Emphasis added.)

Our first task in construing the statutory language regarding a mistrial "order" is to
ascertain legislative intent through an analysis of the language employed, giving ordinary
words their ordinary meaning. When a statute is plain and unambiguous, the court does
not attempt to determine the intent behind it. On the other hand, if the statute's language
or text is unclear or ambiguous, the appellate court uses canons of construction or
legislative history to construe the legislature's intent. King, 297 Kan. at 972. As a general
rule, criminal statutes must be strictly construed, and any reasonable doubt as to the
meaning of the statute is decided in favor of the accused. Nevertheless, this rule of strict
construction is subordinate to the rule that judicial interpretation must be a reasonable
and sensible application of the legislative design and intent. State v. Trautloff, 289 Kan.
793, 796-97, 217 P.3d 15 (2009).

20

In applying these rules regarding statutory construction, Phillips argues the
legislature's use of the word "shall" means that the order of mistrial must be specifically
stated. Contrary to this argument, although the statutory language refers to ordering a
mistrial, it does not use "shall" in the context of a directive to issue a formal
pronouncement declaring or ordering a mistrial. Instead, the word "shall" is used in the
subsection (2) of K.SA. 22-3423 where the legislature provides that, in the event of a
mistrial, the trial court "shall direct" that (1) "the case be retained on the docket" for
retrial or other proceedings and (2) "the defendant be held in custody" pending further
proceedings. The trial court did both of these things after clearly declaring the jury to be
deadlocked.

Further, although there are no Kansas cases on point, cases from other
jurisdictions reject the notion that a trial court must make a specific pronouncement using
token "mistrial" language. The decision in United States v. Warren, 593 F.3d 540, 545
(7th Cir.), cert. denied 131 S. Ct. 428 (2010), is instructive because it is factually similar
and dealt with a similar issue of statutory construction.

In Warren, the federal trial court, like the trial court in this case, told the
deadlocked jury that its service on the case was concluded, dismissed the jurors, and
discussed scheduling matters with counsel without declaring or ordering a mistrial.
Similar to Phillips' statutory interpretation argument, the defendant in Warren argued that
the federal counterparts to K.S.A. 22-3423, Rules 26.3 and 31(b)(3) of the Federal Rules
of Criminal Procedure, require that a mistrial be formally "'ordered'" or "'declared.'" See
Fed. R. Crim. P. 26.3 ("Before ordering a mistrial, the court must give each defendant
and the government an opportunity to comment on the propriety of the order, to state
whether that party consents or objects, and to suggest alternatives."); Fed R. Crim. P.
31(b)(3) ("If the jury cannot agree on a verdict on one or more counts, the court may
declare a mistrial on those counts. The government may retry any defendant on any count
on which the jury could not agree.").
21


The Seventh Circuit Court of Appeals rejected the defendant's argument that the
trial court had to formally order or declare a mistrial, concluding there was no
requirement that a trial "court must articulate the pronouncement of a mistrial using some
particular verbal formulation." 593 F.3d at 545. The court recognized that the federal
rules refer to the ordering or declaration of a mistrial, but "they do not establish a rigid
formula to which the trial court must conform to satisfy the constitutional and procedural
interests at stake." 593 F.3d at 546. Further, the appellate court stated that even if the
federal district judge could be criticized for not orally pronouncing a mistrial using the
"precise terms 'order' or 'declare,' her actions were certainly the functional equivalent of
those terms." 593 F.3d at 546.

This reasoning was adopted in Davidson v. United States, 48 A.3d 194 (D.C. Cir.
2012), cert. denied 134 S. Ct. 421 (2013), another case where the trial court never said
the word "mistrial." Citing Warren, the Davidson court held that the trial court's "'words
and actions in discharging the jury had the effect of "declaring a mistrial."'" Davidson, 48
A.3d at 199 (quoting Warren, 593 F.3d at 545); see Camden v. Circuit Court of Second
Judicial Circuit, 892 F.2d 610, 616 n.7 (7th Cir. 1989) ("[T]he discharge and dispersal of
the jury rendered the mistrial a fait accompli."), cert. denied 495 U.S. 921 (1990).

Davidson and Warren provide persuasive authority for concluding that Phillips'
double jeopardy rights were not violated. Nothing in the plain language of K.S.A. 22-
3423 requires the use of specific words in order for a mistrial to be recognized and the
defendant's constitutional rights be preserved. In Phillips' case, the trial court's words and
actions in discharging the jury had the effect of declaring a mistrial and, as in Davidson
and Warren, were "'certainly the functional equivalent'" of the terms "order" or "declare."
Davidson, 48 A.3d at 200 (quoting Warren, 593 F.3d at 545).

Phillips' double jeopardy rights were not violated by a second trial.
22

SUFFICIENCY OF THE EVIDENCE

Next, Phillips argues that there was insufficient evidence to support his conviction
for premeditated first-degree murder. Phillips admits that he shot and killed Dyer, but he
denies going over to Shaw's house for the purpose of killing Dyer and contends that the
gun accidentally went off during a physical tussle involving Dyer, Armstrong, and
Phillips. In other words, Phillips attacks the elements of intent to kill and premeditation.

Standard of Review and General Principles

When sufficiency of the evidence is challenged in a criminal case, the standard of
review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations. State v.
Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).

When applying this standard to determine if there was sufficient evidence of
premeditation, it must be remembered that premeditation means to have thought the
matter over beforehand and does not necessarily mean an act is planned, contrived, or
schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.
State v. Qualls, 297 Kan. 61, Syl. ¶ 2, 298 P.3d 311 (2013); State v. Holmes, 278 Kan.
603, 632, 102 P.3d 406 (2004); see PIK Crim. 3d 56.04(b). Further, it is not necessary
that there be direct evidence of either intent or premeditation. Instead, premeditation,
deliberation, and intent may be inferred from the established circumstances of a case,
provided the inferences are reasonable. State v. Scaife, 286 Kan. 614, 617, 186 P.3d 755
(2008). In other words, "[i]ntent . . . may be shown by circumstantial evidence, and a
person is presumed to intend all the natural consequences of his acts. [Citation omitted.]"
State v. Childers, 222 Kan. 32, 37, 563 P.2d 999 (1977).
23


In considering circumstantial evidence, Kansas caselaw identifies factors to
consider in determining whether the evidence gives rise to an inference of premeditation
that include: "(1) the nature of the weapon used; (2) lack of provocation; (3) the
defendant's conduct before and after the killing; (4) threats and declarations of the
defendant before and during the occurrence; and (5) the dealing of lethal blows after the
deceased was felled and rendered helpless. [Citation omitted.]" Scaife, 286 Kan. at 617-
18; see State v. Marks, 297 Kan. 131, 140, 298 P.3d 1102 (2013). But the analysis of
what inferences can be reasonably drawn is not driven by the number of factors present in
a particular case because in some cases one factor alone may be compelling evidence of
premeditation. See State v. Cook, 286 Kan. 1098, 1102, 191 P.3d 294 (2008); State v.
Morton, 277 Kan. 575, 582-83, 86 P.3d 535 (2004) (evidence to support second and third
factors sufficient in finding premeditation). Use of a deadly weapon by itself, however, is
insufficient to establish premeditation. State v. Cosby, 293 Kan. 121, 134, 262 P.3d 285
(2011).

Evidence Was Sufficient

A review of the record shows evidence—both direct and circumstantial—of
premeditation. Certainly the strongest evidence of premeditation came from Armstrong's
sworn statement, which establishes an agreement between Williams, Kettler, Armstrong,
and, later, Phillips to kill Dyer in retribution for his robbing Williams at gunpoint. But
there was other evidence of premeditation as well.

Focusing on the first factor traditionally considered as evidence of
premeditation—the nature of the murder weapon—Johnson testified the men entered the
house with guns. Armstrong stated a gun had been hidden, removed from its hiding place
before the men got to the liquor store, and then taken with them—specifically, by
Phillips—into Shaw's house. Even in Phillips' testimony, he assumed the murder weapon
24

had been brought into the house by Armstrong. Moreover, during the struggle over the
gun, there was evidence that Kettler went to Shaw's kitchen to retrieve a knife—an
alternative, but deadly, weapon.

As for the second factor regarding lack of provocation, there was no evidence that
Dyer did anything on the day of his death to entice Williams, Kettler, Phillips, and
Armstrong to enter the house. Under any version of events other than Armstrong's
testimony at his own trial, the aggressors were Armstrong, Kettler, and/or Phillips, either
individually or together, and Williams aided and abetted their efforts.

Patton provided evidence of the third and fourth factors—the defendants' prior
conduct and prior threats and declarations of the defendants before and/or during the
occurrence. Patton testified that Williams had issued a challenge to him and Dyer. As to
Phillips in particular, there was evidence that he was the one who alerted his friends to
Dyer's whereabouts and that he grabbed the gun from Armstrong before entering the
house. Then, on entering the house, he got in Johnson's face "talkin' about, 'Bitch, where
is he?'" Johnson apparently viewed this as a threat because she pretended not to know
who Phillips was referring to because she "didn't want [Phillips] to do nothing to [Dyer]."
Further, even under Phillips' version, Phillips inserted himself into an ongoing fight and,
even after he had control of the gun, he did not leave with Kettler. Instead, he moved
from the bathroom into the bedroom where the fight continued.

Finally, the fifth factor—the dealing of lethal blows after the deceased was felled
and rendered helpless—also weighs toward a finding of premeditation. In Armstrong's
sworn statement, he indicated he had repeatedly hit Dyer in the head with a glass ashtray,
causing Dyer to fall, and then Phillips fired several shots into Dyer as he was lying on the
bedroom floor. Armstrong stated that Phillips was "shooting to kill." Forensic evidence
confirmed that shots were fired into the floor.

25

Phillips ignores these factors and the circumstantial and direct evidence against
him. Instead, he points to evidence supporting his defense theory—that Dyer was
accidentally killed in a drug deal. According to Phillips' trial testimony, because he had
just been released from jail, he was unaware of the past events involving Dyer's robbery
of Williams—the motive for the murder as stated by Armstrong in his sworn statement
and his testimony at the joint preliminary hearing for Williams, Kettler, and Phillips.
Phillips denied at trial, as he does in his appellant's brief, going to Shaw's house for the
purpose of killing Dyer. Phillips also denied carrying a gun into Shaw's house. Then, in
describing the events at Shaw's house, he indicated he came to Armstrong's aid, and in
the process accidentally shot Dyer.

The jury heard this evidence supporting Phillips' defense theory, but the jury also
heard evidence incriminating Phillips—evidence from which a rational factfinder could
conclude that the killing of Dyer was intentional and premeditated. In fact, Phillips
admits that the State presented evidence of premeditation and intent to kill, but he
complains about the weight the jury gave to that evidence: "To convict the Defendant
Phillips of that charge [premeditated first-degree murder], beyond a reasonable doubt, the
jury would have [had] to believe Armstrong's version of what happened." He argues that
Armstrong was not credible because Armstrong had provided varied accounts of what
happened on the date of the incident; Armstrong had recanted his accusatory statements
against Phillips and the others; and Armstrong displayed uncooperative and belligerent
behavior during his testimony. Phillips argues that "no rational fact finder would believe
an admitted liar who recanted his entire story of Phillips' deliberate shooting . . . . The
only believable rendition of events was Phillips', who testified that he didn't intend to kill
Dyer."

To reach the result Phillips requests, this court would have to make its own
determination of credibility and reweigh the evidence, but these are not tasks an appellate
court performs when conducting a sufficiency review. Instead, an appellate court
26

considers all evidence—even if there is conflicting evidence or reasons to question its
credibility—and does so in the light most favorable to the State. See State v. Raskie, 293
Kan. 906, 919-20, 269 P.3d 1268 (2012). Factfinder—in this case the jurors—not
appellate judges, make credibility determinations. Thus, Armstrong's incriminating and
accusatory statements are part of our consideration.

Further, the more incriminating versions of events relayed by Armstrong are
consistent with other direct and circumstantial evidence, including the testimony of
Patton, Johnson, and Mun; the observations of several of Shaw's neighbors; and much of
the evidence gathered in the investigation, including videos from cameras at the liquor
store, phone records, and the nature and location of Dyer's wounds. See Scaife, 286 Kan.
614, Syl. ¶ 3 ("[A] factfinder is permitted to reasonably infer the existence of a material
fact from circumstantial evidence, even though the evidence does not exclude every other
reasonable conclusion or inference."). During the State's closing argument, the prosecutor
spent considerable time detailing the discrepancies between the physical evidence and
Phillips' testimony of how the fight played out. The prosecutor also pointed out the
discrepancies between Phillips' proffer and his testimony and argued Phillips' version was
not credible in light of the physical evidence regarding blood stains and the location of
the abrasions, bite marks, and bullet wounds on Dyer's body.

Thus, the evidence from Armstrong's sworn statement is not so incredible that it
must be disregarded. See State v. Brinklow, 288 Kan. 39, 53-54, 200 P.3d 1225 (2009)
(identifying State v. Matlock, 233 Kan. 1, 4, 660 P.2d 945 [1983], as "perhaps the only
case of its kind in this state where the Supreme Court directly weighed the evidence and
assessed the credibility of the prosecutrix," calling Matlock "aberrant," and concluding in
the case before it that the "inconsistencies in the evidence did not render [the victim's]
testimony . . . so incredible or improbable as to defy belief"); accord State v. Plunkett,
261 Kan. 1024, 1033, 934 P.2d 113 (1997).

27

In summary, various versions of events were presented to the jury through an
assortment of witnesses and other evidence. In this mix of testimony, there was sufficient
evidence when viewed in the light most favorable to the State that a rational factfinder
could have found beyond a reasonable doubt that Phillips and the others premeditated the
killing of Dyer and that he intended to kill Dyer when he shot Dyer after Dyer fell to the
floor.

PROSECUTORIAL MISCONDUCT

Next, Phillips, in an identical argument to the one advanced by codefendants
Williams and Kettler, contends the prosecutor committed misconduct during closing
argument by misstating the legal definition of "premeditation." A misstatement of the law
during a prosecutor's closing argument can deny a defendant a fair trial when "the facts
are such that the jury could have been confused or misled by the statement." State v.
Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d 245 (2012).

Standard of Review

To determine whether a prosecutor committed reversible misconduct, we first
decide if the challenged comment exceeded the wide latitude of language and manner
afforded the prosecutor when discussing the evidence. If the comment was outside these
bounds, we next decide if the comment constitutes reversible error, which requires a
finding that the comment was so prejudicial as to deny the defendant a fair trial. State v.
Bridges, 297 Kan. 989, 1012, 306 P.3d 244 (2013); State v. Tosh, 278 Kan. 83, 85, 91
P.3d 1204 (2004).

In analyzing the second step of whether the defendant was denied a fair trial, we
consider three factors: "(1) whether the misconduct was gross and flagrant; (2) whether it
was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct
28

and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors." No one factor is controlling. Bridges, 297 Kan. at 1012; Tosh, 278 Kan.
at 93.

Before the third factor can ever override the first two factors, an appellate court
must be able to say that the State can meet the harmlessness tests of both K.S.A. 60-261
and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386
U.S. 987 (1967). Bridges, 297 Kan. at 1012 (citing Tosh, 278 Kan. at 97). In Chapman,
the United States Supreme Court directed that a constitutional error can be deemed
harmless only if "the party benefitting from the error proves beyond a reasonable doubt
that the error complained of will not or did not affect the outcome of the trial in light of
the entire record, i.e., where there is no reasonable possibility that the error contributed to
the verdict." State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132
S. Ct. 1594 (2012). If the error does not violate the United States Constitution, the
harmless error analysis is defined in K.S.A. 60-261, and the test is whether "there is a
reasonable probability that the error did or will affect the outcome of the trial in light of
the entire record." 292 Kan. 541, Syl. ¶ 6.

Even though we have applied this dual harmless error standard, we also have
observed that as a practical matter the result of the harmless error evaluation depends on
the outcome of the constitutional standard. "[B]oth the constitutional and
nonconstitutional error clearly arise from the very same acts and omissions," and the
constitutional standard is more rigorous. Thus, the State necessarily meets the lower
statutory standard under K.S.A. 60-261 if it meets the higher constitutional standard. See
Bridges, 297 Kan. at 1015 (citing State v. Herbel, 296 Kan. 1101, 1111, 299 P.3d 292
[2013]).



29

Alleged Misconduct

Here, the alleged prosecutorial misconduct occurred when the prosecutor was
describing the elements of premeditated first-degree murder and stated:

"There are basically three elements to that offense that the State needs to prove to you.
First, that the killing of James Dyer, Jr. was done intentionally, that means purposeful[ly],
willfully, but not by accident. And we'll get into each one of these and how the evidence
applies to these, but I guess in summary, James Dyer did not die by accident. He was
intentionally murdered by these individuals. The second . . . is that it was done with
premeditation. What that means is . . . that they thought it over before they went in and
did it. That's what premeditation is. There's even an instruction about what does that
mean, thought it over, you could think it over, just a half second before you actually fired
the fatal shot, that's true, but that's for you to decide whether or not they thought it over
before they actually committed the act.
"Again, I would suggest that the evidence does support the fact that these three,
along with Mr. Armstrong, clearly thought over what they were about to do before they
went to Rhonda Shaw's house. This was no happenstance. This was no accident. This is
something these four individuals thought about as they made their way over to Rhonda
Shaw's house. It's the reason they went there, was to get James Dyer." (Emphasis added.)

Misstatement of Law

Phillips contends that the prosecutor's "half second" description of premeditation
is analogous to stating premeditation can be instantaneous—language this court
disapproved in State v. Holmes, 272 Kan. 491, 33 P.3d 856 (2001). Phillips makes a
persuasive point.

In Holmes, the victim was shot and killed in a struggle over a gun. The defendant
was convicted of premeditated first-degree murder, although there was no evidence of
premeditation before the struggle began. During closing argument, the prosecutor stated
30

that "'premeditation can occur in an instant. That's the law in the State of Kansas.'" 272
Kan. at 497. Then, in rebuttal the prosecutor stated that "'premeditation can take a
second. . . . It can happen in a second.'" 272 Kan. at 497. This court determined that the
prosecutor's statements constituted a deliberate misstatement of the law, noting the
prosecutor had been cautioned in the jury instructions conference before argument began
to avoid such comments. Cumulatively, the lack of evidence of premeditation before the
struggle began and the deliberate nature of the comments convinced this court that the
prosecutor's misconduct created reversible error. 272 Kan. at 499-500.

Consistent with Holmes, this court has repeatedly warned prosecutors about going
outside of the approved language in PIK Crim. 3d 56.04(b) and making comments that
are analogous to stating premeditation can occur in the same instant as the act that results
in a death. See, e.g., State v. Hall, 292 Kan. 841, 850-52, 257 P.3d 272 (2011)
(prosecutor's statement during closing argument that defendant could have formed
premeditation after the pull of the first trigger, "because remember, he pulls four times,"
improperly stated the law and essentially suggested that premeditation could have been
formed instantaneously); State v. Cosby, 285 Kan. 230, 248, 169 P.3d 1128 (2007) ("We
have consistently found reversible misconduct when a prosecutor states or implies that
premeditation can be instantaneous."); State v. Morton, 277 Kan. 575, 585, 86 P.3d 535
(2004) (reversible error for prosecutor to imply premeditation can be instantaneous, based
on closing argument that "'[o]ne squeeze of a trigger is all it takes'"); State v. Pabst, 273
Kan. 658, 662, 44 P.3d 1230 ("A discussion of PIK Crim. 3d 56.04[b] in closing
argument should avoid any temptation to use a synonym to convey the suggestion of 'an
instant' without using the actual phrase."), cert. denied 537 U.S. 959 (2002); State v.
Moncla, 262 Kan. 58, 70-73, 936 P.2d 727 (1997) (adding phrase "'it may arise in an
instant'" to pattern instruction on premeditation was inappropriate; use of such language
tended to diminish importance of the element of premeditation).

31

The State suggests that while the prosecutor's "half second" reference was inartful,
the prosecutor was merely trying to convey that the jury could find the decision to kill
Dyer occurred in half a second, and it was the jury's duty to determine if that constituted
"thinking it over beforehand." This argument is not persuasive. The prosecutor's
statement informed the jury that the "beforehand" period could be a half second. Further,
the descriptive term "half second" is obviously a shorter period of time than the "'in a
second'" phrase disapproved in Holmes and is not significantly different than saying "'in
an instant'" or in a "'squeeze of a trigger,'" as disapproved in several cases. As in those
cases, Phillips' jury could have taken the prosecutor's choice of words as suggesting that
premeditation can be instantaneous with the homicidal act. As such, we conclude the
prosecutor misstated the law.

Not Reversible Error

With prosecutorial misconduct established, it is necessary to determine whether
the error requires reversal under the second analytical step. As we have discussed, this
requires a harmlessness inquiry using three factors. See Bridges, 297 Kan. at 1012.

In assessing the first of these factors of whether gross and flagrant conduct
occurred, a misstatement of the law can be considered gross and flagrant, especially if the
statement is contrary to a longstanding rule of law. See State v. Kemble, 291 Kan. 109,
121-25, 238 P.3d 251 (2010) (factors determining gross and flagrant conduct include
repeated comments, emphasis on improper point, planned or calculated statements,
violation of a well-established rule, and violation of a rule designed to protect a
constitutional right); accord State v. Brown, 295 Kan. 181, 214, 284 P.3d 977 (2012).
Given our past advice that prosecutors should be especially careful in discussing the
meaning of the term "premeditation," we conclude the misconduct was gross and
flagrant.

32

Nevertheless, we do not find evidence of ill will. A prosecutor's ill will is often
"'reflected through deliberate and repeated misconduct.' [Citation omitted.]" State v.
Inkelaar, 293 Kan. 414, 430, 264 P.3d 81 (2011). These circumstances do not exist in this
case. The misstatement was isolated and surrounded by correct statements of law. As
shown in the portion of the transcript quoted above, both before and after the reference to
the "half second," the prosecutor mentioned correctly that premeditation means "thought
it over" beforehand. The prosecutor argued that the evidence showed that Phillips and the
others thought over the killing of Dyer before they arrived at Shaw's house.

Even so, Phillips contends that the prosecutor's ill will can be shown by this case's
"long and tortured path, including a mistrial" in the first trial and by what Phillips
characterizes as Armstrong's "personal attack" on the prosecutor. Presumably, Phillips is
referring to the fact that Armstrong cursed on the witness stand and demonstrated an
uncooperative attitude towards the prosecutor—the same prosecutor from Armstrong's
second trial, during which Armstrong was convicted of premeditated first-degree murder.
Phillips contends that the prosecutor "would be less than human if he did not feel ill will
towards the defendants."

But a review of the record does not show any ill will on the part of the prosecutor
or any connection between (1) the prosecutor's performance in the second trial and the
former mistrial or (2) the State's separate prosecution of Armstrong. Consequently, we
conclude there was no deliberate misconduct or ill will.

Turning to the third factor, whether the evidence against the defendant was of such
a direct and overwhelming nature that the misconduct would likely have had little weight
in the minds of the jurors, we conclude there is no reasonable possibility the misstatement
affected the verdict. The State's theory of premeditation was that Williams, Kettler,
Phillips, and Armstrong went into Shaw's house with the intent to kill Dyer. In fact,
immediately upon making the misstatement, the prosecutor said that Williams and the
33

others went to Shaw's house "to get" Dyer and they thought about getting him on their
way from the liquor store to the house. This theme was repeated and emphasized
throughout the closing argument. As we have discussed, there was considerable evidence
to support this theory, which distinguishes this case from Holmes, 272 Kan. at 499-500,
where this court reversed a defendant's conviction because of a similar statement.
Further, the State did not discuss or emphasize any version of the facts that would suggest
any of the defendants premeditated the murder in an instant or a half second.

In addition, the trial court properly instructed the jury on the definition of
premeditation and instructed the jury that arguments of counsel were not evidence.
Specifically, the trial court gave PIK Crim. 3d 56.04(b) (premeditation) in conjunction
with the instruction on first-degree murder prior to the parties' closing arguments. See
State v. Jamison, 269 Kan. 564, 573, 7 P.3d 1204 (2000) ("Consistent with our past
decisions, we conclude that the definition of 'premeditation' in PIK Crim. 3d 56.04[b]
adequately conveys the concept that 'premeditation' means something more than the
instantaneous, intentional act of taking another's life.").

Because we presume the jury followed the court's instructions, the court's
guidance served to mitigate any potential harm caused by the prosecutor's statements. See
State v. Huddleston, 298 Kan. 941, 956, 318 P.3d 140 (2014) ("Although these
instructions do not give the prosecutor a free pass on misconduct, they are appropriate
considerations when evaluating whether a jury was misled."); State v. Hebert, 277 Kan.
61, 85, 82 P.3d 470 (2004) (prosecutor's improper comment regarding premeditation was
not reversible error when there was no evidence that prosecutor deliberately misstated the
law, jury was given proper PIK instruction on premeditation, and jury was told that
arguments of counsel were not evidence); State v. Doyle, 272 Kan. 1157, 1165-66, 38
P.3d 650 (2002) (no indication prosecutor purposefully misstated the law and evidence of
premeditation was strong); Jamison, 269 Kan. at 572-73 (prosecutor's misstatement on
34

the law on premeditation was not reversible error when the jury was properly instructed
on the law).

In light of the jury instructions, the facts of the case, and the theme of the
prosecutor's argument that the premeditation had occurred before Phillips and the others
arrived at Shaw's house, we conclude the jury would not have been confused or misled by
the prosecutor's misstatement. The State has demonstrated beyond a reasonable doubt
that the prosecutor's misstatement did not affect the outcome of the trial and does not
require reversal.

Affirmed.