[Copyrighted Material Omitted]
Appeal from Wyandotte District Court; ROBERT P. BURNS, judge.
BY THE COURT
1. The justification of self-defense is not available to a person who initially provokes the use of force unless he or she has exhausted every means to escape from imminent danger or has communicated the good-faith intent to terminate the use of force.
2. Even if an appellate court presumes the district court erred in failing to give an unrequested instruction, the error is not reversible if, as here, the complaining party fails to firmly convince the appellate court that the jury would have reached a different verdict had the instruction error not occurred.
3. A prosecutor's statements during closing argument that a witness was " brutally honest" and " was on the stand telling you the truth" state the prosecutor's personal opinion as to the credibility of a witness and are misconduct.
4. A prosecutor commits misconduct by arguing facts not in evidence.
5. A prosecutor's statement that suggests the goal and purpose of a criminal defense attorney is to take bystanders who happen to witness a crime and portray them as deceptive and dishonest demeans both the adversarial process and defense counsel's role in that process, and it is misconduct.
6. Under the facts of this case, the prosecutor's misconduct does not warrant reversal of the defendant's conviction because the misconduct was not gross and flagrant, was not motivated by ill will, and would likely have had little weight in the minds of jurors in light of the strength of the evidence.
7. Evidence of a third party's motive will be excluded for relevance where nothing else connects the third party to the crime.
8. The failure to make a proffer of excluded evidence precludes appellate review if there is no other basis in the record to determine whether the district court erred in excluding the evidence.
9. When faced with a cumulative error allegation, an appellate court exercises unlimited review over the totality of the circumstances in the case and determines whether the cumulative effect of multiple errors substantially prejudiced the complaining party so as to deny a fair trial. If any one error is constitutional, the party benefitting from the multiple errors must establish the cumulative error is harmless beyond a reasonable doubt.
Rachel L. Pickering, assistant public defender, 3rd J.D., argued the cause and was on the brief for appellant.
Jennifer L. Myers, special assistant district attorney, argued the cause, and Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
[301 Kan. 672] Luckert, J.:
A jury convicted Darren Knox of premeditated first-degree murder under K.S.A. 21-3401(a). In this direct appeal from that conviction, he raises six issues, which we have reordered. None of the issues presents reversible error. We hold:
(1) Knox was not entitled to an instruction on self-defense because the evidence, even when viewed in the light most favorable to Knox, established Knox's use of deadly force was not legally justified. Rather, Knox provoked the confrontation;
(2) The district court did not commit clear error by failing to instruct on second-degree intentional murder. In light of the strong evidence of premeditation, Knox does not firmly convince us the jury would have returned a different verdict had the instruction been given;
(3) While the prosecutor committed misconduct during closing arguments by vouching for the credibility of some witnesses, discussing facts not in evidence, and disparaging the defense, the statements did not deny Knox a fair trial;
[301 Kan. 673] (4) The district court did not err in excluding evidence suggesting a third party might have had a motive to commit the murder because no evidence connected a third party to the crime;
(5) Knox did not make a sufficient proffer to preserve his argument that the district court violated his confrontation rights by limiting cross-examination of a State witness; and
(6) The one presumed instructional error and the several instances of prosecutorial misconduct did not cumulatively deprive Knox of a fair trial.
Facts and Procedural Background
On August 3, 2008, around 1 p.m., Krystal Fears was in the upstairs bedroom of her house when she heard what she thought were fireworks. She ran to the window. Outside, three young men were walking down the street shooting at the passenger side of a white Mustang that had pulled into the driveway of a house across the street. The driver of the Mustang was Fears' friend, Lafayette Morris. Morris tried to exit the car and run, but he collapsed from a mortal gunshot wound. The three men ran up the street, and Fears ran out of her house to help Morris.
Fears initially told detectives that two of the three men were shooting at Morris' Mustang but later she could not remember how many men had fired shots. During Knox's first trial, which ended in a hung jury, Fears testified to seeing Morris with a gun firing back at the three men. But she did not remain consistent on this point. In Knox's second trial, she testified that Morris did not have a gun. Investigators never found a handgun in Morris' possession or on the scene.
Fears' sister was also home when the gunshots began. She too looked out her upstairs window to see three men in the street. She only remembered seeing one man fire a gun at Morris' car, and she could not recall what the other two men were doing or if they had weapons.
Fears' mother heard the gunshots from the downstairs kitchen and ran to the front door. She told investigators that she saw two young men in the street; one was shooting at Morris and the other [301 Kan. 674] was running. She saw Morris get out of his Mustang and fall as he tried to run.
At the scene, investigators found Morris' body lying in a pool of blood near the driver side of the Mustang. A subsequent autopsy revealed that a fatal 9mm bullet had entered the right side of Morris' chest, collapsed both of his lungs, and came to rest in the soft tissue of his left arm. The Mustang had three bullet holes in its passenger side window and three bullet holes in its passenger side quarter panel. Outside the Mustang on the passenger side, investigators collected three fired .40 caliber cartridges and four fired 9mm cartridges. There were no bullet holes on the driver side, no fired cartridge cases inside the Mustang, and no fired cartridge cases outside the Mustang on the driver side.
Less than 2 weeks after Morris' murder, an acquaintance of Morris', Darrius Freeman, told his probation officer that he was being shot at and threatened; he wanted to document who was after him in case he had to defend himself. Freeman said that after Morris' murder, " RonRon" called him and told him, " We got your boy Laffy [Lafayette Morris], now you and Shookie next." The probation officer referred Freeman to a police detective. Although Freeman talked to the detective about the phone call, he would not disclose any information about Morris' murder because he did not want to be a " snitch." The record does not clearly establish whether Freeman or investigators knew
" RonRon's" legal name at that point, but at the second trial the jury heard a recorded conversation in which Knox identified himself by using that nickname.
A little over a month after Freeman's initial report to his probation officer and the detective, Freeman decided to provide additional information about Morris' murder. The change of mind occurred after Freeman was charged with federal crimes and reached a plea agreement that obligated him to cooperate with the investigation of Morris' murder. According to Freeman's statement, on the day of Morris' murder, Freeman heard gunshots as he left a house located about a block from where Morris was shot. Freeman hid on the side of the house. After the shots stopped, he saw one of his longtime enemies--Chris Holliday--and three other men--Mack Calhoun, Casey Ellis, and " RonRon" --holding guns [301 Kan. 675] and running to a nearby orange Avalanche SUV. Freeman recognized the vehicle as belonging to Holliday. The Avalanche was parked in front of a white truck that Freeman knew belonged to another enemy, Darren Allen. After the men entered the vehicles, they drove away. Freeman also informed police that the orange Avalanche was painted black soon after. And law enforcement did later pick up a black Avalanche, which clearly used to be orange that contained Holliday's identifying information. Although Freeman picked others out of photographic lineups, he was unable to identify Knox.
Armed with the new information from Freeman, investigators went back to Fears, who was less than eager to cooperate further. When detectives finally obtained an interview with her, they showed her a black and white lineup that included Knox's picture and asked if she could identify the primary shooter. She asked to see the photographs in color, and from the color lineup she identified Knox as the primary shooter. At trial, the defense attacked the credibility of this identification because Fears had labeled Calhoun as the primary shooter in a previous photographic lineup. Moreover, Fears had testified prior to trial that officers " hinted" at which photograph she should pick, though she clarified that she only meant that the officers told her Knox's name after she had picked his photograph. Fears' mother also picked Knox out of the same color lineup. But Fears' sister could not identify anyone from any lineup.
By the time investigators linked Knox to Morris' murder, Knox was incarcerated on not-yet related charges. He had been arrested about a week after Morris' murder for unlawful possession of a .40 caliber Taurus pistol. That charge arose when Kansas City police officers searched an SUV incident to a traffic stop. The officers found the Taurus pistol directly below the back passenger seat occupied by Knox. Subsequent ballistics testing ...