[Copyrighted Material Omitted]
Appeal from Riley District Court; MERYL D. WILSON, judge.
BY THE COURT
1. A district court should grant a defendant's request for a new trial when doing so is in the interest of justice under K.S.A. 2014 Supp. 22-3501. A district court's ruling on a motion for new trial is reviewed for an abuse of discretion. A district court abuses its discretion when the action is (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact.
2. A prosecutor's suppression of evidence favorable to the accused is a violation of a defendant's due process rights under the Fourteenth Amendment to the United States Constitution. The three components of a Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation claim are: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) the evidence must be material so as to establish prejudice.
3. Under the first Brady prong, evidence that is favorable to the accused encompasses both exculpatory and impeachment evidence. For Brady purposes, there is no distinction between these two types of evidence that are favorable to the accused; thus, impeachment evidence is considered exculpatory.
4. Under the second Brady prong, prosecutors have a positive duty to disclose evidence favorable to the accused when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
5. Under the third Brady prong, evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
6. The privilege against self-incrimination ends after sentence is imposed where a plea of guilty has been regularly accepted by the court and no motion is made to withdraw it.
7. A declarant need not be unavailable in order to admit a hearsay statement as a declaration against interest.
8. The doctrine of invited error precludes a party from asking a district court to rule a given way and thereafter challenging the court's ruling on appeal.
9. When reviewing the failure to give a lesser included instruction, (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.
10. Second-degree intentional murder is a lesser degree of homicide than first-degree premeditated murder and thus, if sufficient evidence of all of the elements of the greater offense has been presented by the State, an instruction on the lesser offense is legally and factually appropriate and should be given by the district judge. However, when a defendant challenges the judge's failure to give the lesser included offense instruction for the first time on appeal, the defendant must demonstrate that the failure was clearly erroneous, i.e., the defendant must firmly convince the appellate court that the giving of the instruction would have made a difference in the verdict.
11. Under the facts of this case, even though the evidence of premeditation was overwhelming, the factfinder could have drawn some inferences to conclude the shooting was intended but not premeditated. As some evidence of the elements of intentional second-degree murder was presented at trial, an intentional second-degree murder instruction was legally and factually supported and should have been given by the district court. However, in this case, the failure to give the instruction was not clearly erroneous.
12. Even on an aiding and abetting theory of criminal responsibility, the State must prove that the defendant possessed the specific intent of premeditation in order to convict the defendant of first-degree murder.
13. Premeditation means to have thought the matter over beforehand and does not necessarily mean an act is planned, contrived, or schemed beforehand; rather, premeditation indicates a time of reflection or deliberation.
14. Circumstantial factors which give rise to an inference of premeditation include: (1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct before and after the killing; (4) threats and declarations of the defendant before and during the occurrence; and (5) the dealing of lethal blows after the deceased was felled and rendered helpless.
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Barry K. Disney, assistant county attorney, argued the cause, and Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
MICHAEL J. MALONE, Senior Judge, assigned. ROSEN, J., concurring in part and dissenting in part.
[301 Kan. 971] MICHAEL J. MALONE,
Domingo Soto appeals his jury trial convictions for aiding and abetting first-degree premeditated murder, possession of cocaine with intent to distribute, possession of methamphetamine with intent to distribute, and possession of marijuana. He argues the district court erred in denying his motion for new trial based on the State's failure to disclose the principal defendant would be available to testify and failing to give a lesser included intentional second-degree murder jury instruction. Finding no reversible error, we affirm.
[301 Kan. 972] Factual and Procedural Background
The Killing of Steven Freel
During the late morning hours of December 7, 2011, the corpse of Steven Freel was discovered on the edge of a dirt road in rural Riley County, Kansas. The cause of death was a gunshot wound to his chest, and it appeared the body had been there overnight. On the same day, Michael Blake Layne was established as a suspect in the fatal shooting.
In 2011, 19-year-old Layne worked for 41-year-old Domingo Soto at an equestrian center located in Riley County. Layne called Soto " Boss," and Soto was also known as " El Diablo." Soto lived in a trailer on the grounds and served as a caretaker for the property. Soto was also involved with distributing illegal drugs, specifically methamphetamine and marijuana. Soto would front marijuana to Layne who would later pay him back.
Freel and his girlfriend Nicole Langdon regularly purchased marijuana from Layne. In August 2011, Layne presumably committed a robbery with a gun he borrowed from Freel. In the ensuing investigation, Riley County Detective Ryan Runyan spoke with Layne and Freel about the armed robbery. Significantly, Detective Runyan informed Layne he knew Freel had provided him a gun for the robbery.
Subsequently in October or November 2011, Layne met Reyna Youdath, a college student who shared his interest in drugs. Layne introduced her to Soto, who would provide her with marijuana and methamphetamine at his house whenever she asked. On December 5, 2011, Layne asked Youdath to help him rob a girl who owed Soto from a previous drug transaction.
Around 3 a.m. on December 6, 2011, Layne, armed with a rifle, Youdath, and another individual robbed Nicole Autrey at her residence. They took a tattoo gun case, laptops, a black lock case, a cell phone, keys, an amplifier, and an Xbox. They returned to Layne's house. In the morning, Layne texted Soto: " Can I come out? I got shit for you. Very important shit." Later that morning, Youdath and Layne's girlfriend, Harley Boyden, dropped Layne off at Soto's house and Layne gave him Autrey's stolen items. Youdath [301 Kan. 973] went back to her dorm, but she expected Layne to pick her up around 1 or 2 that afternoon to smoke methamphetamine.
In the early afternoon, Layne called Soto to tell him he wanted to kill Freel. Layne wanted to bring Freel over to Soto's residence to kill him with a .45 caliber pistol that Soto kept at his residence. At 2:56 p.m., Layne texted Soto: " I need him under boss please." Soto texted back: " W C EL. DiABlO." At about 3:06 p.m., Layne texted Soto back: " Let me do it boss." Thirty seconds later, Soto again responded: " W C EL. DiABlO."
Around the same time, Freel and his girlfriend Langdon drove to Layne's residence. Freel went inside to speak with Layne, and Langdon stayed in her car. Langdon thought Freel was just going inside to purchase marijuana. Layne's girlfriend, Boyden, testified that Freel seemed high on methamphetamine and kept begging Layne to help him find a gun because the police
were after him. Freel came out to the car to ask Langdon for money to buy a gun. She refused, they argued about it, and ultimately they drove back to their own apartment.
Freel took a suitcase out of the trunk and started walking toward his own apartment when Layne pulled up behind their car. Freel leaned into Layne's passenger window, talked to him for a while, and then got in Layne's car. They pulled up next to Langdon who was still in her car. Freel told her he loved her, he would be right back, and everything was going to be okay. At 3:24 p.m., Youdath sent Layne a text saying she was waiting on him at her dorm.
Layne and Freel arrived at Soto's residence. Freel started talking, and Soto punched him in the face because Freel had " no idea what he's saying." Soto gave Layne the .45 pistol and told Layne " he didn't want this to happen on his property, and he didn't want to know anything about it." Layne and Freel left in Layne's vehicle.
At 3:46 p.m., Freel called Langdon and sounded irritated. He told her Layne and he were on their way back and asked if she could pick him up from Layne's house. She heard Layne in the background telling Freel to tell Langdon to " kiss his ass." Freel asked Layne if Langdon could pick him up from where they were out in the country. Layne refused, so Freel once again said he loved [301 Kan. 974] her, they needed to go to Layne's, and they were on their way. That was the last time Langdon talked to Freel.
Sometime after 4 p.m., Layne arrived to pick up Youdath at her dorm. Youdath could tell something was wrong with him, and he told her that he " messed up real bad." He told her to reach under the seat. She complied and pulled out a black handgun. Youdath asked why he had the gun, and Layne told her that the guy he used to rob houses with " had his name in his mouth" and " he took care of it." Youdath asked for more details and Layne explained he took Freel to Soto's house where Soto punched him in the face and gave Layne a gun. Then Layne drove Freel to a dirt road, told him to get out, and shot him.
When Layne and Youdath arrived at Layne's residence, Langdon was parked out front in her car. Layne told her he dropped Freel off at his house or at Walmart. Later Layne drove Youdath and two of his friends out to see the body to prove that he had actually killed Freel. The time was around 5:30 p.m. Layne took Freel's backpack and put it in the car, and one of his friends took Freel's wallet.
Sometime around 9 p.m., Soto picked up Ashley Wright and drove her back to his trailer. Wright testified that Soto told her that " some stuff was going on, that he gave [Layne] his baby, and he was gonna shoot somebody." She knew Soto often referred to his gun as his " baby." Wright said she did not think Layne would do that, and Soto replied that he could tell if his gun had been fired.
After they arrived at the trailer, Layne called Soto and said he was on his way and was bringing the baby back. About 15 to 30 minutes later, Layne arrived and handed the gun to Soto. Soto did not touch the gun with his bare hands but used a bandana. Soto checked to see if it had been shot and then nodded his head yes to Wright. Soto asked Layne how he felt, and Layne replied that he felt numb. Soto patted him on the back and told him it would get better. Layne told ...