1. Review of prosecutorial misconduct claims involves a two-step process. The court first decides whether the comments were outside the wide latitude a prosecutor is allowed, e.g., in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, the court must determine whether the improper comments prejudiced the jury and denied the defendant a fair trial.
2. The case of State v. Tosh, 278 Kan. 83, 93, 97, 91 P.3d 1204 (2004), identified three factors to consider in determining if the prosecutorial misconduct so prejudiced the jury against the defendant that a new trial should be granted: (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 against the defendant was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Under Tosh, none of these three factors is individually controlling. Before the third factor can ever override the first two factors, an appellate court must be able to say that 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 (1967), have been met.
3. Where both the constitutional and nonconstitutional error clearly arise from the very same acts and omissions, an appellate court begins with a harmlessness analysis of the constitutional error. If the constitutional error is reversible, an appellate court need not analyze whether the lower standard for harmlessness under K.S.A. 60-261 also has been met. Under both standards, the party benefiting from the error bears the burden of demonstrating harmlessness.
4. A prosecutor may not argue irrelevant evidence regarding the impact of a crime on a victim or a victim's family.
5. In closing arguments, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not 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 the controlling law.
6. A prosecutor commits misconduct by making an improper comment, even if the improper comment is made in response to arguments or statements by defense counsel.
7. In determining whether prosecutorial misconduct was gross and flagrant, among the things an appellate court considers are whether the comments were repeated, emphasized improper points, were planned or calculated, or violated well-established or unequivocal rules.
8. In determining whether prosecutorial misconduct was motivated by ill will, among the things an appellate court considers are whether the conduct was deliberate, repeated, or in apparent indifference to a court's ruling.
9. For jury instruction issues, the progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).
10. Generally, a defendant is entitled to instructions on the law applicable to his or her defense theory if there is sufficient evidence for a rational factfinder to find for the defendant on that theory. If that defendant requests an instruction at trial, the court must view the evidence in the light most favorable to the defendant.
11. Mutual combat is a fight both parties enter willingly or voluntarily. It implies a common intent to fight but not necessarily an exchange of blows.
12. The doctrine of self-defense cannot excuse a killing done when the defendant willingly engaged in mutual combat unless the defendant has withdrawn in good faith and done everything in the defendant's power to avert the necessity of the killing.
13. Where a trial objection to a jury instruction is different from the argument presented on appeal, a clearly erroneous standard of review under K.S.A. 22-3414(3) applies.
14. To determine whether an instruction or a failure to give an instruction was clearly erroneous, the reviewing court must first determine whether there was any error at all. To make that determination, the appellate court must consider whether the subject instruction was legally and factually appropriate, employing an unlimited review of the entire record.
15. If the reviewing court determines that the district court erred in giving or failing to give a challenged instruction, then the clearly erroneous analysis moves to a reversibility inquiry, wherein the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal.
16. Giving assistance or encouragement to one who it is known will thereby engage in conduct dangerous to life is sufficient for accomplice liability as an aider or abettor as to crimes defined in terms of recklessness or negligence.
17. An appellate court reviewing a district court evidentiary ruling applies a multistep analysis. For the first step, the court determines whether the evidence is relevant. K.S.A. 60-401(b) defines relevant evidence as that which has any tendency in reason to prove any material fact. Accordingly, relevant evidence must be both probative and material. Whether evidence is probative is reviewed under an abuse of discretion standard; materiality is judged under a de novo standard. For the second step, the court determines which rules of evidence or other legal principles apply. The district court's conclusion is reviewed de novo. For the third step, the district court must apply the applicable rule or principle. This application is reviewed either for abuse of discretion or de novo, depending on the rule or principle being applied. Some rules and principles grant the district court discretion, while others raise matters of law.
18. The credibility of an accomplice witness is subject to attack, and great leeway should be accorded the defense in establishing the witness' subjective reason for testifying. But the propriety and scope of the examination lies within the sound discretion of the trial court.
19. The primary purpose of the Sixth Amendment Confrontation Clause is to give the accused the opportunity for cross-examination to attack the credibility of the State's witnesses.
20. One error cannot support the application of the cumulative error doctrine.
21. Whether Kansas' identical offense sentencing doctrine applies is a question of law, which is reviewed de novo.
22. Under Kansas' identical offense sentencing doctrine, if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.
23. The generic crime of homicide, of which murder is the highest and most criminal species, is of various degrees and encompasses every mode by which the life of one person is taken by the act of another.
24. Kansas' identical offense sentencing doctrine does not apply to severity levels of the same offense. Per K.S.A. 21-3107(2)(a), involuntary manslaughter as stated in K.S.A. 21-3404(b) is a lesser included offense of reckless second-degree murder as set out in K.S.A. 21-3402(b). Therefore, under the facts of this case, the identical offense doctrine does not apply.
25. The use of a defendant's prior criminal convictions as one factor to establish a presumptive sentence does not violate Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 6, 2010. Appeal from Douglas District Court; Robert W. Fairchild, judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Charles E. Branson, district attorney, argued the cause, and Nicole Romine, assistant district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
We granted Shanna Friday's petition for review of the Court of Appeals decision affirming her conviction and sentence for second-degree unintentional murder stemming from the beating of Jerry Deshazer. The issues on appeal, and our accompanying holdings, are as follows:
1. Did the prosecutor commit misconduct during her argument? Yes, but harmless error.
2. Did the district court err in refusing to instruct the jury on self-defense? No.
3. Did the district court err in instructing the jury on aiding and abetting? No.
4. Did the district court err in excluding specific evidence of a witness' plea bargain? No.
5. Did cumulative error deny Friday a fair trial? No.
6. Does the identical offense sentencing doctrine require reversing and remanding for resentencing? No.
7. Did the district court err in including Friday's prior convictions in her criminal history score without their being proved to a jury beyond a reasonable doubt? No.
We therefore affirm the district court and the Court of Appeals panel.
On February 2, 2008, Deshazer was found dead in a bathtub in his mobile home in Lawrence. His body was covered in blood, and according to the coroner, his face was "just bashed in." The coroner determined the cause of death was blunt force injuries to the head, with additional contributing medical conditions.
The night before Deshazer's death, he got together at his home with Jerod Buffalohead, Jarvis Jones, and defendant Friday. Buffalohead and Jones arrived around 4:30 p.m., and Friday arrived around 5 p.m. All four drank alcohol together throughout the evening. Shortly after arriving, Buffalohead left and returned around 8:45 p.m.
At one point, Friday got into a verbal altercation with Deshazer. Their argument never became physical, and they eventually cooled down.
Shortly after Buffalohead returned to Deshazer's home, a physical altercation began. Buffalohead, Friday, and Jones each offered different versions of the episode that resulted in Deshazer's death.
According to Buffalohead's testimony for the defense, he heard arguing when he returned to the mobile home around 8:45 p.m. Somebody told Buffalohead that he owed Deshazer money, so Buffalohead offered to pay Deshazer. But Deshazer said Buffalohead did not owe him anything. While Buffalohead was getting ice, "a fight started" between Friday and Deshazer. Buffalohead testified:
"I'm not real sure how the fight started, but I heard a slap, I heard a thud on the ground and—
" . . . [w]hen I heard all that, I turned around and Jerry [Deshazer is] on, is on, not on top of her—I don't know if they ...