Appeal from Gove District Court; EDWARD E. BOUKER, judge.
SYLLABUS BY THE COURT 1. Use of a "Wheel of Fortune" analogy during voir dire to explore the distinction between proof beyond a reasonable doubt and proof beyond all doubt is not prosecutorial misconduct, although use of the analogy is discouraged. 2. In general, when Pattern Instructions for Kansas (PIK) Crim. 3d 52.02 (burden of proof, presumption of innocence, and reasonable doubt) is given, additional instructions defining reasonable doubt are unnecessary and no separate instruction should be given. 3. PIK Crim. 3d 51.10 (penalty not to be considered by jury) does not dilute the State's burden of proof and is not erroneous.
The opinion of the court was delivered by: Luckert, J
The opinion of the court was delivered by LUCKERT, J.:
David Stevenson was convicted by a jury of premeditated first- degree murder. On direct appeal from that conviction he argues: (1) The prosecutor committed misconduct during voir dire by using a "Wheel of Fortune" analogy while questioning jurors about their understanding of the concept of reasonable doubt; (2) the trial court erred in refusing togivethe defendant's requested instruction defining the phrase "reasonable doubt"; and (3) the trial court erred in giving an instruction, which mirrored Pattern Instructions for Kansas (PIK) Crim. 3d 51.10 (penalty not to be considered by jury), because it diluted the defendant's presumption of innocence. We reject his arguments and affirm his conviction.
FACTS AND PROCEDURAL BACKGROUND
The State charged Stevenson with the March 13, 2008, premeditated first-degree murder of his father, Walter. Walter was found dead after being crushed by a hydraulic truck bed. The State presented evidence that Walter had been incapacitated by blows to his head before he suffered crushing injuries consistent with being pinned by the bed of the truck. The State's theory was that Stevenson and his father had been arguing and Stevenson murdered his father in order to gain control over the family farm and money in a family trust.
To present evidence that some injuries had been inflicted before Walter was crushed, the State established there was blood spatter in areas other than where Walter was found; there had been an attempt to clean up blood; there was blood under a puddle of oil that had been spilled some distance from the truck; and there was blood on a hammer. These various blood stains matched Walter's DNA. In addition, the State presented the coroner's opinion that some injuries were inconsistent with the type of crushing force that would be expected if the truck's hydraulics had failed and that those injuries had been administered while Walter was still alive. Further, other experts opined there was no physical evidence of a catastrophic hydraulic failure, such as leaked fluid.
The State pointed to Stevenson as the person who had killed Walter by presenting evidence of motive; establishing that Stevenson was the person who found Walter; presenting evidence of Stevenson's "odd" reaction to his father's death, such as "acting like he was crying"; establishing that Stevenson gave inconsistent statements; and proving inconsistencies between his version of events and the physical evidence. The State also established that Stevenson had no blood on his clothes, which made Stevenson's statement that he had attempted to free his father from the truck improbable given the large amount of blood loss at the scene.
In his defense, Stevenson presented expert testimony establishing that Walter's injuries and the blood spatters were consistent with an accidental hydraulic failure. Stevenson also presented evidence of his activities that day in an effort to show he lacked the opportunity to have killed his father and staged the accident. Further, the defense experts and defense counsel attempted to cast doubt regarding whether it was possible to stage such an elaborate scene. For example, they opined it would be difficult to position Walter where he could be crushed under the truck bed if he had already been struck and rendered unconscious.
The jury convicted Stevenson of one count of premeditated first-degree murder. At sentencing, Stevenson received a life sentence without possibility of parole for 25 years. He now appeals, and this court has jurisdiction under K.S.A. 2012 Supp. 22-3601(b)(3) (maximum sentence of life imprisonment imposed).
In one of his issues on appeal, Stevenson contends the prosecutor committed misconduct during voir dire when asking questions that touched on the concepts of reasonable doubt and the State's burden of proof.
Appellate review of an allegation concerning prosecutorial misconduct, including misconduct occurring during voir dire, which need not be preserved by a contemporaneous objection, requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed in discussing the evidence. Second, if misconduct is found, the appellate court determines whether those comments constitute plain error, that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012); see State v. King, 288 Kan. 333, 344, 204 P.3d 585 (2009).
In arguing the prosecutor made comments that were outside the wide latitude allowed, Stevenson suggests the prosecutor attempted to define "reasonable doubt" even though this court has frequently indicated a definition of the term is not necessary. See, e.g., State v. Wilson, 281 Kan. 277, Syl. ¶ 4, 130 P.3d 48 (2006) ("No definition or explanation can make any clearer what is meant by the phrase 'reasonable doubt' than that which is imparted by the words themselves."); State v. Walker, 276 Kan. 939, 956, 80 P.3d 1132 (2003) ("'Efforts to define reasonable doubt, other than as provided in PIK Crim. 3d 52.02, usually lead to a hopeless thicket of redundant phrases and legalese, which tends to obfuscate rather than assist the jury in the discharge of its duty.'") (quoting State v. Acree, 22 Kan. App. 2d 350, 356, 916 P.2d 61, rev. denied 260 Kan. 995 ); State v. Banks, 260 Kan. 918, 927, 927 P.2d 456 (1996) (noting that this court "has long held that a jury instruction defining reasonable doubt is unnecessary"); State v. Douglas, 230 Kan. 744, 745, 640 P.2d 1259 (1982) (stating that this court adheres "to the position long-established in Kansas jurisprudence that no definition could make the concept of 'reasonable doubt' any clearer than the words themselves").
Yet, the prosecutor did not explicitly define "reasonable doubt." In fact, as Stevenson notes, the prosecutor began the voir dire questioning regarding reasonable doubt by telling the jury that neither the court nor the attorneys would define the concept. Even so, according to Stevenson, the prosecutor essentially presented a definition through an analogy to the "Wheel of Fortune" game show. To make this analogy, it appears from the record on appeal that the prosecutor displayed a sign printed with "Wheel of Fortune" nearly spelled out-one letter was missing. The prosecutor then noted ...