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State of Kansas v. Rickey Marks

April 19, 2013


Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge.


SYLLABUS BY THE COURT 1. Appellate courts apply a two-step analytical framework for prosecutorial misconduct claims. First, the court determines whether the prosecutor's comments were outside the wide latitude allowed prosecutors in discussing the evidence. If so, the court next considers whether those comments prejudiced the jury against the defendant and denied the defendant a fair trial. 2. Although prosecutors are given wide latitude in the language and manner of presentation during closing arguments, those arguments must still be consistent with the evidence. If they are not, the first prong of the prosecutorial misconduct test is met and the court must consider whether the misstatement of facts constitutes plain error. 3. Appellate courts consider three factors in determining whether a prosecutor's misstatement constitutes plain error requiring reversal: (a) whether the misconduct is gross and flagrant; (b) whether the misconduct shows ill will on the prosecutor's part; and (c) whether the error affected the defendant's substantial rights, meaning the error affected the trial's outcome. 4. When the defendant establishes an error of constitutional magnitude, it is the State's burden, as the party benefitting from the error, to prove beyond a reasonable doubt that the error did not affect the defendant's substantial rights. 5. It is within a trial court's discretion whether to exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice. 6. A district court abuses its discretion when its action is: (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 7. Under the plain language of K.S.A. 22-3212 and K.S.A. 22-3213, the defendant is entitled to personal copies of certain discovery upon request. 8. K.S.A. 22-3212(e) provides a procedure for limiting access to sensitive information.

The opinion of the court was delivered by: Biles, J.:


The opinion of the court was delivered by BILES, J.:

Rickey Marks directly appeals his conviction for the first-degree premeditated murder of his wife, arguing: (1) the prosecutor committed misconduct during closing arguments; (2) the district court erred when it denied his motion in limine to exclude evidence that his wife filed for divorce in the weeks prior to her murder; (3) the Wyandotte County District Attorney's open file discovery policy violates K.S.A. 22-3212 and K.S.A. 22-3213; and (4) cumulative error deprived him of a fair trial. We hold the prosecutor misstated the law on premeditation and that Marks was entitled to copies of the discovery under K.S.A. 22-3212 and K.S.A. 22-3213. Both errors were harmless in this case, and we affirm his conviction.


On October 11, 2008, Rozeta Marks was stabbed eight times in her chest, arm, and back while driving to a store with her husband, Rickey Marks. According to a medical examiner who testified at trial, Rozeta's wounds were on the left side of her body, indicating she was stabbed through the driver's side window. The fatal stab entered between Rozeta's ribs and into her heart. Marks was ultimately charged with and convicted of first-degree premeditated murder.

At trial, Rozeta's friend Judith Williams testified that a few weeks before the stabbing, Rozeta visited her in Tennessee. Williams said that during that visit Marks called Rozeta approximately 60 times and accused her of infidelity. He also left numerous threatening voicemails and text messages in which he said Rozeta must have been scared of him and that she was "dead" when she returned.

Williams testified that Rozeta secretly filed for divorce during the Tennessee visit, telling Williams that she did not want Marks to know. Rozeta left the divorce papers in Tennessee so that Marks would not find them. After returning home, Rozeta sent Williams a text message saying, "He dont believe that i'm getting a divorce. Keep begging PLEASE DONT[.] GIVE ME ANOTHER CHANCE."

Before trial, Marks' attorney filed a motion in limine seeking to exclude evidence that Rozeta filed for divorce shortly before her death. He conceded the divorce evidence would be relevant if there was additional evidence that Marks knew Rozeta had filed but claimed there was none and that any divorce evidence was therefore irrelevant and extremely prejudicial. The district court denied Marks' motion, which he unsuccessfully renewed on the morning of trial.

Sometime after Rozeta returned home, she and Marks drove to the house of one of Marks' brothers, Reginald, to pick up some unused tools to return to a store. According to Reginald's trial testimony, Marks did not act agitated or angry at the time, and Rozeta waved at him from the car.Williams also testified that she spoke to Rozeta before the stabbing and that Rozeta sounded "fine."

Reginald further testified that about 15 to 20 minutes after Marks and Rozeta left his home, Marks' other brother, Stephen, yelled for him to dial 911. Stephen testified that he observed Rozeta stagger in the street, look "wobbly," and ultimately fall down. Stephen said Rozeta told him she had been stabbed, and Stephen saw Marks drive off "kind of fast" in Rozeta's car.

Several people testified at trial that shortly after the stabbing, Marks telephoned them saying that he had stabbed Rozeta. One of them was Williams' husband in Tennessee, who testified that Marks said, "I killed the bitch. . . . I stabbed her 20 times." Marks was arrested later the day of the stabbing at a sandwich shop. One officer said Marks had a contusion on his forehead from falling in the parking lot but did not have any other noticeable injuries. Neither the car nor the murder weapon was ever recovered.

Marks testified in his own defense that he could not find the receipt for the tools, which he would need to return them. He said once Rozeta learned he lost the receipt, a heated argument began during which Rozeta became "irate" because she wanted the money and Marks had a bad habit of losing receipts. Marks also testified that Rozeta stopped the car and told him to get out and that "pissed [him] off" and he refused.

According to Marks, this was when Rozeta pulled a knife from under the car seat. He testified that Rozeta raised the knife like she was going to stab him, and a "tussl[e]" began during which he grabbed her hand and wrestled for the knife. Marks said Rozeta "lunged" towards him and that was when "this happened." According to Marks, he became upset and tearful after the stabbing. He said Rozeta got out of the car and started walking down the street. Marks said he told her to get back in so they could go to the hospital, but Rozeta refused. When she would not return, Marks said he got in the driver's seat and drove away.

After retiring for deliberations, the jury submitted a question to the court, asking: "While premeditation has no specific time frame is there a reasonable definition of 'instantaneous'? In other words, if someone decides to act and then acts is that gap of time sufficient to declare pre-med?" The judge replied: "Ladies and Gentlemen, I cannot give you a better definition of premeditation than that contained in [the instruction]. Please reread the definition of premeditation in [the instruction]."

The jury convicted Marks of first-degree premeditated murder. He was sentenced to life in prison with a minimum confinement of 25 years. This court has jurisdiction under K.S.A. 2012 Supp. 22-3601 (life sentence; off-grid crime).


During closing arguments, the prosecutor explained to the jury regarding premeditation that "intent can be formed during the act itself." (Emphasis added.) But in the district court's instructions for first-degree premeditated murder, second-degree intentional murder, voluntary manslaughter, and involuntary manslaughter, the jury received the standard PIK definition for premeditation as follows:

"Premeditation means to have thought over the matter 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." (Emphasis added.)

Marks argues the prosecutor's comments to the jury about forming premeditation "during the act itself" improperly eliminated the distinction between instantaneous development of intent to kill, a standard Marks assigns to second-degree intentional murder, and actual premeditation in first-degree murder cases. He says these statements prejudiced his right to a fair trial.

Standard of Review

Appellate review of prosecutorial misconduct claims involves a two-step process. The appellate court first decides whether the comments were outside the wide latitude a prosecutor is allowed in discussing evidence and, therefore, improper. Second, if there was misconduct, the appellate court determines if reversal is required and must decide:

(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and overwhelming nature that the misconduct would likely have had little weight in the jurors' minds. State v. Raskie,293 Kan. 906, 914, 269 P.3d 1268 (2012); State v. Inkelaar, 293 Kan. 414, 427, 264 P.3d 81 (2011). None of these three factors is individually controlling. Inkelaar, 293 Kan. at 427. If the defendant establishes misconduct of a constitutional magnitude, the State, as the party benefitting from the error, bears the burden of proving beyond a reasonable doubt that the error did not affect the defendant's substantial rights. Raskie,293 Kan. at 914.


Our first step is to determine whether the prosecutor's comments were improper. And while a prosecutor has wide latitude in discussing evidence, the remarks must accurately reflect that evidence, accurately state the law, and cannot be intended to inflame the passions or prejudices of the jury or divert the jury from its duty to decide the case based on the evidence and controlling law. 293 Kan. at 917 (citing State v. Tosh, 278 Kan. 83, 90, 91 P.3d 1204 [2004]). The alleged prosecutorial misconduct occurred when the prosecutor stated:

"If you don't want to consider evidence from before October 11th, then consider . . . the way she died that day. Eight times. That's not an accident, people. Eight times. She gets it here (indicating) and goes through into the top part of her arm. The doctor said her arm's like this (indicating), goes all the way through and you've got to pull that out and that's just one time, just one time. Then you've got to make the decision to do it again a second time. She's cut on her left hand. Gotta make the decision to do a third time. He cuts her again up in here (indicating). It goes through her arm again, all the way through. It goes through the skin here, the tissue and comes out the other end, then you've got to pull it out too, gotta pull it right back out. That's three. Then you've got to make a choice to do it a fourth time. Right here (indicating), plunge it in, pull it out. Got to do it a fifth time right in here (indicating), move your arm toward her again, pull it back. A sixth time right here (indicating). Again, you're choosing to make that motion. You're thinking about it, it's not accidental, you're not flailing it around. You're connecting right here by her heart (indicating). Then you've got to choose to do it a [seventh] time right here (indicating), the one that kills her, right in the chest to the hilt that one. Think about the effort to push that through, to go through in between two ribs, cut that right ventricle of her heart, to the hilt and then pulling it out and that's a conscious choice. That's a directed movement. That is not an accident. You pull it back out and then you do it one more time, the eighth time on the back of her neck which, ladies and gentlemen, she's facing him the whole time. . . .

". . . Focusing on only that day, that's not considering all the evidence and that's what [defense counsel] wants you to do is focus on just that day. . . .

"However, if you do that, it still leads us to the same answer because that is intent can be formed during the act itself. It can be at some point formed-at some point he made a choice he was going to kill her that day. Eight stab wounds, that tells you what he was thinking right there. There's nothing that can tell you better than that." (Emphasis added.)

Marks argues it was a misstatement to claim premeditation could have been formed "during the act itself" in the time it took to stab her eight times. He asks us to find the prosecutor's statement that "intent can be formed during the act itself" is the same as incorrectly suggesting that premeditation may be formed instantaneously. Marks also argues the prosecutor misstated the evidence because there was nothing indicating Marks stopped and contemplated each stab before it occurred.

In State v. Warledo, 286 Kan. 927, 947, 190 P.3d 937 (2008), a case involving the repeated stomping on the victim as she lay on her kitchen floor, the prosecutor said during closing:

"'Premeditation can be formed between the first and second stomps, between the second and third stomps, at any point during the stomping (attorney stomping). Okay. The stomping, what is his desire? To kill his mother. Ultimately it boils down to what's going on in the defendant's brain when he's stomping his mother to death. 15 stomps.'"

And on rebuttal the prosecutor further stated:

"'What we're saying is as he stomped, as he knocked her down, he had time to think. As he kicked her in the head, he had time to think. As he stomped on her, he had time to think. Again, time to think and again, time to think and if that's not enough, ladies and gentlemen, you hear him on the tape walk away and then come back (attorney stomping) in between saying things. ...

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