[Copyrighted Material Omitted]
Appeal from Wyandotte District Court; THOMAS L. BOEDING, judge.
1. Admission of evidence that the serial number of a gun had been obliterated at an unknown time and failure to give a limiting instruction on that evidence under K.S.A. 2013 Supp. 60-455 does not require reversal of the defendant's conviction when the State's other evidence of the defendant's guilt on first-degree murder is strong.
2. Failure to give a limiting instruction on evidence of the defendant's use of other inmates' telephone personal identification numbers does not require reversal of the defendant's first-degree murder conviction.
3. A lesser-included offense jury instruction on heat-of-passion voluntary manslaughter is factually inappropriate when there is no evidence before a jury tending to show that a first-degree murder defendant faced provocation sufficient to cause an ordinary person to lose control of his or her actions and reason. The test is objective, not subjective. The hallmark of heat of passion is taking action upon impulse without reflection; it includes an emotional state of mind characterized by anger, rage, hatred, furious resentment, or terror.
4. On the facts of this case, the prosecutor's reference to school shootings as examples of situations in which a defendant may be convicted of premeditated murder despite being unaware of the exact identities of his or her victims was not misconduct.
5. Under the facts of this case, the cumulative error doctrine does not require reversal of the defendant's first-degree murder conviction.
Joanna Labastida, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellee.
Jennifer S. Tatum, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellant.
BEIER, J. MORITZ, J., not participating. MICHAEL E. WARD, District Judge, assigned.
[300 Kan. 703] OPINION
Defendant Tynisha Story appeals her first-degree murder conviction in the January 1, 2010, shooting death of Lakeasha Ross, a social guest of Story's girlfriend, Ela Bartley. The district court judge sentenced Story to a hard 25 life sentence.
Story raises several issues that we have combined: (1) admission of and failure to give limiting instructions on evidence of other crimes or civil wrongs; (2) failure to instruct on voluntary manslaughter; (3) prosecutorial misconduct arising from references to school shootings during closing argument; and (4) cumulative error.
None of the issues raised by Story requires reversal of her conviction, and we affirm the judgment of the district court.
Factual and Procedural Background
Story and Bartley dated nonexclusively for several years. On December 31, 2009, Bartley and her two sisters, Jonice Dickerson and Talisa Silas, attended a party at Story's mother's house. Bartley had driven to the party, but Story drove the three sisters home. After dropping the sisters off at their apartment, Story left in Bartley's car.
The three sisters stayed up talking and watching movies. At some point, Ross, a woman Bartley had dated for " a couple of days" several years earlier, called Bartley and sad she was coming over. Once Ross arrived, the women continued to talk and watch movies. Silas would later testify that Story called Bartley several times during this period. Eventually everyone went to sleep: Bartley and Ross in one bedroom and Dickerson in another; Silas slept in the front room.
The next morning, as Silas awoke, she heard Bartley tell Ross that Ross needed to leave before Story returned the car. About this time, Story called to tell Bartley she was coming over; Bartley said " OK" and hung up. Within minutes, Bartley called Story back to tell her that she " had company" and that Story could keep the [300 Kan. 704] car until the " company was gone." Bartley again told Ross that she needed to leave because Story was on her way.
Not long after the second call, Story arrived at Bartley's apartment. Without knocking, Story used Bartley's keys to enter. Bartley and Silas would later testify that, upon entering, Story looked around the room and, without saying a word, began shooting at Ross. Story fired approximately four shots before Bartley pushed her out the door.
Bartley's versions about what happened next differed from one another. At trial, she and Silas would testify that Story stopped shooting when she was pushed out the door. But, immediately after the shooting, Bartley told Detective Clayton Bye that Story pushed her back " and just started shooting at least four more times. And I finally just-- 'cause she was at the doorway--and I finally just pushed her out and locked it."
After Story was outside the apartment, both Bartley and Silas called 911.
Officer Scarlet McConnell was the first officer to arrive on the scene. She found the apartment with the front door open and the three sisters inside screaming. Seeing Ross lying on the floor, McConnell immediately went to check Ross' pulse and found that she was dead.
Based on statements given by Bartley and her sisters, police developed several leads on Story's whereabouts. Police contacted their counterpart in Kansas City, Missouri, for assistance. Based on a tip, police officers in Missouri followed a vehicle to a house where a passenger who matched Story's description jumped out and ran inside. The officers secured the area and waited for backup.
After backup arrived, officers knocked on the front door. Edward Chism, Story's uncle, answered and allowed the officers inside. The officers found Story and arrested her. After Story's arrest, Chism consented to a search of the house. Officers found a nickel-plated gun in a pile of clothes in one of the ...