[Copyrighted Material Omitted]
Appeal from Sedgwick District Court; David J. Kaufman, judge.
BY THE COURT
1. Immunity under K.S.A. 21-3219 cannot be invoked for the first time on appeal after conviction.
2. A prosecutor commits error if he or she argues that premeditation can occur in an instant, engages in argument that inflames the passions or prejudices of the jury rather than urging it to discharge its duty to decide a case on the evidence, or misstates the law governing the way in which the jury can arrive at a guilty verdict. In this case, one of two prosecutors delivering closing argument engaged in misconduct only by misstating the law governing the way in which the jury could arrive at a guilty verdict. However, the error was not gross and flagrant and was not the product of ill will. Given the substantial evidence against the defendant in this case, the State has met its burden of proving beyond a reasonable doubt that the error did not affect the outcome of the trial in light of the entire record. No reversal is required.
Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Defendant Austin N. Jones appeals his jury conviction of two counts of first-degree murder. He argues for the first time on appeal that under Kansas' version of a " Stand-Your-Ground Law" in effect at the time of the crime, K.S.A. 21-3219, he is immune from prosecution. In the alternative, he alleges that prosecutorial misconduct deprived him of a fair trial.
Factual and Procedural Background
It is undisputed that defendant Austin N. Jones shot and killed [298 Kan. 325] Emmanuel Delatorre and Jesus M. Esparza in a parking lot outside of Jones' apartment on July 2, 2009.
Jones went to his friend Adrian Rodriguez' apartment to " hang out" in the afternoon before the shooting. The apartment had been leased in Jones' name; but Jones allowed Rodriguez to live there after Jones moved into his girlfriend's apartment in the same complex. Jones had brought a .45 caliber pistol he was interested in selling to Rodriguez. Although Rodriguez expressed interest, he said he could not afford the gun at that time. Jones placed the pistol in his waistband.
Later in the afternoon, sisters Jessica and Lindy Vestering arrived. A short while later, Josh Johnson and Esparza also arrived. Rodriguez, Johnson, and Esparza were recording rap songs while Jones and the Vestering sisters played drinking games. The group drank brandy and beer.
Meanwhile, Delatorre and Johnny Nash were drinking beer at Nash's dad's residence. The pair then went to a sports bar and consumed more beer. They then decided to go to another bar, but Delatorre wanted to stop by his apartment first. Delatorre's apartment was in the same complex as Jones'. Delatorre also wanted to see Esparza, another resident of the same complex.
Before they reached the apartment complex, Delatorre told Nash that he was upset with Jones because he had heard that Jones assisted Delatorre's estranged girlfriend in moving out of the apartment she shared with Delatorre. Delatorre had also heard that Jones received an entertainment center from the apartment. Delatorre told Nash that he wanted to ask Jones whether he had helped the girlfriend. If he had, Delatorre said, he was going to " beat [Jones'] ass."
When Delatorre and Nash reached the apartment complex, they encountered Rodriguez and Esparza in the parking lot. Rodriguez told Delatorre to go get some beer from his refrigerator. Delatorre entered the apartment and saw Jones sitting on a couch.
At this point in the chronology of events, the participants' descriptions of what transpired diverge.
Jones would eventually testify that Delatorre " slammed open" the door to the apartment and asked, " [W]here the fuck is [298 Kan. 326] [Jones?]" Jones described Delatorre as " angry" and saying, " I'm going to beat your ass." Jones said Delatorre tried to fight with him in the apartment, but Jones stood up and said, " I don't want any problems with you. I don't want to fight." Jones also claimed that Delatorre continued " cussing [him] out, and saying he was going to beat [his] ass." According to Jones, this confrontation lasted 2 to 3 minutes.
Jessica Vestering would eventually testify that Delatorre and Jones began talking with each other " like friends talk" after Delatorre entered the apartment. Although she could not hear exactly what they were saying, she said, " It wasn't mean or anything like that." On cross examination, however, she acknowledged that she had told police shortly after the shooting that Delatorre was " mad" about something. According to her, after the conversation between Delatorre and Jones, Delatorre announced that he was leaving and did so. Rodriguez and Esparza, who had followed Delatorre into the apartment, also left. Jessica Vestering said that she too left the apartment and met her sister and Johnson outside, leaving Jones alone in the apartment. Jones came outside " almost right after" she did, and he was holding a gun in his hand. She said that she heard two shots and saw two flashes of light, but she did not actually see the shooting.
Lindy Vestering would eventually testify that she and Johnson had left the apartment because she " was getting too drunk." She talked with Nash for a couple minutes when he and Delatorre pulled into the parking lot. Shortly after that conversation, as she was walking back to the apartment, Jones walked out of the apartment and past her. Jones " ignored" her and " didn't even acknowledge" her when she said something to him. Moments later she heard gunshots.
Rodriguez would eventually testify that, once inside the apartment, Delatorre began " [a]rguing with [Jones] or something." After Jones and Delatorre argued for " a little bit," Rodriguez walked Delatorre and Esparza out of the apartment. The three had met Nash in the parking lot, when, " less than a minute" later, Jones came outside. Rodriguez said that Jones raised his hand, and then Rodriguez heard shots.
[298 Kan. 327] Johnson would eventually testify that Delatorre, Esparza, and Nash " circled around" Jones and " were talking shit." At one point, according to Johnson, Nash reached for his pocket. Johnson said he heard Nash say, " I'm going to kill you," and Delatorre punched Jones. Johnson had not told detectives about Nash's statement or Delatorre's punch. He did tell detectives that Jones looked down at Delatorre and Esparza after shooting them and said, " [F]uck you." At trial, Johnson said he could not remember this part of his earlier account.
Nash would eventually testify that he waited outside while Delatorre went into the apartment. Nash estimated that Delatorre was in the apartment for " about 2 minutes." When Delatorre came back outside, he told Nash about the argument inside with " that pussy" Jones. Nash told Delatorre that he should " beat [Jones'] ass" and encouraged him to fight. Despite this, Nash said that the members of the entire group generally had been friendly with one another and that they occasionally settled disputes by boxing and then drinking beer together. According to Nash, Esparza convinced Delatorre to " let it drop" and said there was no need to fight because " [Jones] is our friend." Nash also said that Jones appeared and shot Delatorre and Esparza before he, Delatorre, and Esparza could leave to go to a local bar as the three of them had planned. Nash said he ran away as Jones shot at him.
Autopsies revealed that Delatorre died as a result of a gunshot wound to the back of the head, and Esparza died from a gunshot wound to the rear side of the head. The
autopsies also showed that Delatorre had a blood alcohol content between .14 and .17 grams, and Esparza had a blood alcohol content between .07 and .11 grams. Delatorre's autopsy did not reveal any bruises, blunt force injury, or other evidence that he was " fighting with his knuckles."
The State charged Jones with two counts of first-degree murder, see K.S.A. 21-3401(a)); one count of aggravated assault, see K.S.A. 21-3410(a); and one count of criminal ...