Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge.
BY THE COURT
1. When an issue of criminal restitution has been left open by a sentencing judge and the defendant files a notice of appeal before the restitution issue is fully settled, the notice of appeal is premature and lies dormant until final judgment is pronounced in district court and the appeal process begins. Such a procedure does not deprive the appellate court of jurisdiction.
2. Under subsection (b) of K.S.A. 21-3436, an alleged aggravated battery must be " so distinct" from the alleged felony murder it supports so " as to not be an ingredient of the homicide." The question of whether such a distinction exists is one of law for the court, not one of fact for the jury. A criminal defendant is not entitled to an instruction telling his or her jurors that they must make a specific finding on the existence or nonexistence of the distinction, and the absence of such an instruction does not entitle the defendant to an appellate ruling that the two offenses merged.
3. Because the question of whether an underlying alternative offense and a felony murder are so distinct that merger is prevented is one of law for the court, a defendant's challenge to the sufficiency of evidence to persuade a jury on that point is without merit.
4. A challenge to the sufficiency of evidence to support an alternative underlying offense for felony murder is waived or abandoned if not raised in an appellate brief.
5. A district court judge does not err in refusing to give a criminal defendant's requested voluntary intoxication instruction when the evidence shows mere consumption of alcohol, not resulting impairment of the ability to form the requisite criminal intent.
6. When the State raises specific legal issues, arguments, or theories during pretrial proceedings on the admissibility of evidence--thus giving a district judge an opportunity to rule on these issues, arguments, and theories as well as on those relied upon by the defense--and the defendant invokes the pretrial proceedings when renewing his or her objection to admission of the evidence at trial, the issues, arguments, and theories raised initially by the State are preserved for review if pursued by the defendant on appeal.
7. A district judge does not err under the Confrontation Clause of the Sixth Amendment nor under K.S.A. 60-460(e) when he or she admits evidence of an out-of-court declarant's statements, if the district judge has not abused his or her discretion in identifying the statements as dying declarations. On the record in this case, there was no abuse of discretion: The district judge employed the correct legal standard; had substantial competent evidence to support his factual findings; and issued a ruling that was not arbitrary, fanciful, or unreasonable.
8. The cumulative error doctrine does not apply when multiple errors have not been identified.
Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, argued the cause, and Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, was with him on the brief for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
Defendant Michael Reed appeals his first-degree felony-murder conviction, arising out of the shooting death of Vincent Barnes. Reed raises several instructional issues, a sufficiency of the evidence challenge, and a hearsay challenge. He also asserts entitlement to reversal because of cumulative error. For its part, the State questions whether this
court has jurisdiction to consider Reed's appeal in the first place.
As detailed below, we hold that we have jurisdiction over Reed's appeal, but none of his arguments lead to the relief he seeks.
Factual and Procedural Background
On the night of May 15, 2009, Reed; Reed's brother, Robert; and Jeremy Trout went to a bar for an impromptu bachelor party for Robert. The three men drank beer and had several shots of liquor. After about an hour, Reed and Trout left to meet Reed's girlfriend, who was going to give them some money.
Reed called Barnes in an attempt to purchase cocaine. Trout would later testify that " the guy [Reed] called had owed him from a past deal. I think [Reed] was trying to get some more, and towards the tab, and take it off his tab or whatever. But the guy ended up hanging up." Although Reed called Barnes back several times, Barnes never answered.
After obtaining the money, Reed and Trout returned to the bar. Trout would later testify that Reed told Robert " that the guy had hung up [on him], and he felt like he was trying to punk him."
A short time later, the trio left the bar and spent about 30 minutes at Reed's house. Reed then decided to try to buy cocaine from a man named Stacie. The group drove to two separate bars to look for Stacie, but never found him. Reed then drove the group to Barnes' apartment. When they knocked, Barnes' sister, Alexia, answered the door. Reed was the first to enter, followed by Trout, and then Robert. Trout would eventually testify that " [Reed] was just talking to [Barnes]. Just, you know, why did you hang up on me, I thought we was friends, and just conversation like that." According to Trout, at that point, " Robert, he starts ranting and raving, [h]anging up on my brother, man, trying to punk my bro." Alexia's eventual testimony would be similar: When Robert came in, he " was yelling, why are you hanging up on my brother like that?" and then began to argue with Barnes and pulled out a gun.
Robert fired a shot into the ceiling of the apartment. Barnes told Alexia to call the police. As she started to walk out of the apartment to do so, Robert held the gun to her head and said, " Call the cops, you bitch." Meanwhile, Trout grabbed Barnes and Reed began punching Barnes. Eventually Robert joined in, and Alexia left the apartment. At some point, Robert shot Barnes in the stomach from " very close" range.
Exactly who remained in the apartment at the time Barnes was shot would be disputed at trial. Alexia said she was running back up a set of stairs toward the apartment when she heard the shot and saw Reed, Robert, and Trout run out of the apartment. But both Robert and Trout would testify that neither Reed nor Trout was in the apartment when Robert shot Barnes.
After the shooting, Alexia found Barnes' cell phone and looked at his last call, which was from a person listed on the phone as " Micky Norms." Alexia would testify at trial that she asked Barnes who shot him, " if it was--in the phone it was Micky Norms. And I was like, Did Micky shoot you, did Micky shoot you. And he said, Yes."
Christopher Marceau and Daniel Gumm were the first police officers to reach the scene. For safety reasons, the officers parked their patrol cars outside of the apartment complex and walked in. They could hear a man yelling for an ambulance.
When the officers found Barnes, they attempted to put pressure on his wound. Marceau would testify that he asked Barnes who shot him. According to Marceau, Barnes
" stated the first name Micky several times. Then he [stated] Micky Norms or Micky North. Micky was clear, I could hear he was saying  Micky. And then the Norm or North was not as clear, probably because of Vincent not--he stated that he wasn't able to breathe very well. And so that last part, Norms or North, I could not hear very well."
A third officer, Jason Newberry, also would testify that Barnes identified the shooter as " Mickie or Nicky." In addition, when Newberry ...