Appeal from Wyandotte district court; JOHN J. MCNALLY, judge.
1. Whether a criminal defendant's protection against double jeopardy is violated is a question of law over which an appellate court has unlimited review.
2. When a criminal defendant's request for mistrial becomes inevitable because the prosecution has intentionally subverted the defendant's right to a fair trial, a second prosecution for the same offense is barred by double jeopardy.
3. Under the facts of this case, double jeopardy does not prevent retrial.
4. Generally issues not raised below may not be raised on appeal; however, an appellate court may reach a legal theory first asserted on appeal if (1) it involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the judgment of the trial court was right for the wrong reason.
5. When a second appeal is brought in the same case, the first decision is the settled law of the case on all questions involved in the first appeal. Reconsideration will not be given to such questions.
6. Under the facts of this case, neither the law of the case, the mandate rule, nor the protection against double jeopardy applied on remand to prevent the district court from modifying its ruling on a pretrial evidentiary matter not challenged or addressed on appeal.
7. Abuse of discretion is the appropriate standard of review for a district court's ruling on a motion in limine. The party challenging the ruling bears the burden of showing an abuse of discretion.
8. When the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.
9. 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. Several factors may give rise to an inference of premeditation, including: (1) the nature of the weapon used, (2) the lack of provocation, (3) the defendant's conduct before and after the killing, (4) threats and declarations of the defendant before and during the occurrence, and (5) the dealing of lethal blows after the deceased was felled and rendered helpless. Moreover, premeditation and deliberation may be inferred from the established circumstances of a case, provided the inference is a reasonable one.
10. Under the facts of this case, there was sufficient evidence of premeditation.
The opinion of the court was delivered by: Beier, J.
In this direct appeal from his conviction of first-degree murder and aggravated robbery on retrial, defendant Joseph Dodds Morton alleges that (1) prosecutorial misconduct in the first trial barred a new trial on a first-degree murder charge; (2) the district court's original ruling on a motion in limine excluding certain expert testimony should have controlled the issue on retrial; and (3) the State failed to prove premeditation beyond a reasonable doubt.
Defendant's initial convictions stemmed from a March 2001 robbery of a grocery store at which he had been employed; during the robbery, Morton shot and killed the store manager. At Morton's first trial, the jury unanimously found him guilty of first-degree murder and aggravated robbery, although jurors were unable to agree on whether the underlying first-degree theory was premeditation or felony murder. On direct appeal, we determined that the prosecutor had committed reversible misconduct by suggesting that premeditation can take place in an instant; she had held up her hand in the shape of a gun and pretended to pull its trigger, saying: "One squeeze of the trigger is all it takes." State v. Morton, 277 Kan. 575, 86 P.3d 535 (2004). At the time, we declined to find the ...