Generally, evidence that a person committed a crime or civil
wrong on a prior specified occasion is inadmissible to prove
that person has a propensity to commit crimes or civil wrongs
as a basis to support an inference that person committed the
currently alleged crime or civil wrong on a specified
occasion, unless such evidence is admissible as relevant to
prove some other material fact, such as motive.
Although motive is not an element of premeditated
first-degree murder, evidence of its existence can be highly
persuasive circumstantial evidence of guilt. Therefore,
evidence of prior crimes or civil wrongs relevant to prove
the defendant's motive to commit premeditated
first-degree murder can be admissible under K.S.A. 2017 Supp.
appellate review of a claim of prosecutorial error involves a
two-step process. First, the appellate court must decide
whether the challenged prosecutorial act falls outside the
wide latitude afforded prosecutors to conduct the State's
case and attempt to obtain a conviction in a manner that does
not offend the defendant's constitutional right to a fair
trial. Only if that error is found, the appellate court moves
to the second step of determining whether the error
prejudiced the defendant's due process rights to a fair
trial, utilizing the constitutional harmlessness inquiry from
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17
L.Ed.2d 705 (1967). Prosecutorial error is harmless if the
State proves beyond a reasonable doubt that the error will
not or did not affect the trial's outcome in light of the
entire record, i.e., when there is no reasonable possibility
the error contributed to the verdict.
is clearly improper for a prosecutor to state facts to the
jury that have not been admitted into evidence, but
prosecutors are allowed to craft arguments that include
reasonable inferences to be drawn from the admitted evidence.
prosecutor who misstates the law to the jury has crossed the
line, falling outside the wide latitude afforded prosecutors
to conduct the State's case and attempt to obtain a
State has the burden to prove, beyond a reasonable doubt,
that the defendant committed the charged crime, and it is
error for a prosecutor to attempt to shift the burden of
proof to the defendant. But a prosecutor does not shift the
burden of proof by pointing out to the jury that there is a
lack of evidence to support a defense theory.
prosecutor arguing to a jury is forbidden from accusing the
defendant of lying, or otherwise offering a personal opinion
as to the defendant's credibility. But when a case
develops that turns on which of two conflicting stories is
true, it may be reasonable to argue, based on the admitted
evidence, that certain testimony is not believable.
instruction issues, the progression of analysis and
corresponding standards of review on appeal are: (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,
utilizing the test and degree of certainty set forth in
State v. Ward, 292 Kan. 541, 256 P.3d 801
person is justified in the use of deadly force against
another when and to the extent it appears to such person and
such person reasonably believes that such use of force is
necessary to prevent imminent death or great bodily harm to
such person or a third person.
test for self-defense has two parts: a subjective test
requiring a showing that the defendant sincerely and honestly
believed it was necessary to kill to defend the defendant or
others; and an objective standard requiring a showing that a
reasonable person in the defendant's circumstances would
have perceived the use of deadly force in self-defense was
defendant is entitled to an instruction on every affirmative
defense that is supported by competent evidence. Competent
evidence is that which could allow a rational fact-finder to
reasonably conclude that the defense applies. Once the
defendant satisfies the burden of producing such evidence,
the State has the burden of disproving the defense beyond a
defense theory of self-defense is an affirmative defense, and
once a defendant properly asserts a self-defense affirmative
defense, the State must disprove self-defense beyond a
crime of involuntary manslaughter includes the circumstance
when the killing of a human being is committed during the
commission of a lawful act in an unlawful manner. The crime
of involuntary manslaughter is a lesser included offense of
premeditated first-degree murder.
district court's refusal to give a requested lesser
included offense instruction on the crime of involuntary
manslaughter, even if erroneous, will not require reversal if
there is no reasonable possibility that the error would have
changed the jury's guilty verdict for premeditated
right to a jury trial under Sections 5 and 10 of the Kansas
Constitution Bill of Rights does not give a person the right
to have questions of law decided by a jury; resolving legal
questions is the function of the court.
from Wyandotte District Court; J. Dexter Burdette, judge.
Corrine E. Gunning, of Kansas Appellate Defender Office,
argued the cause and was on the brief for appellant.
Jennifer S. Tatum, assistant district attorney, argued the
cause, and Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, were with her on the brief for
Haygood directly appeals his jury-trial convictions for
premeditated first-degree murder and criminal possession of a
firearm by a convicted felon. He claims the trial court
committed reversible error by admitting evidence of his prior
domestic violence and by denying his request for jury
instructions on the affirmative defense of self-defense and
on the lesser-included offense of involuntary manslaughter.
Further, he argues the prosecutor's erroneous comments
during closing argument warrant a new trial. We disagree and
affirm the convictions.
and Procedural Overview
does not deny that he shot and killed Demetria Mills in the
house he shared with his long-time girlfriend, Georgie
Stallings, and her 13-year-old son, G.T. The disputed
testimony at trial involved the manner in which the events
unfolded and the way in which Mills acted prior to the
background, Stallings and Mills were long-time close friends.
Haygood and Mills were also close; Mills' stepmother was
Haygood's adopted mother. The three regularly spent time
together. In the time leading up to the shooting, Haygood had
been drinking more than usual and using a drug called
"Molly," which changed his behavior, making him
paranoid and more abusive. Stallings and Haygood would often
argue when they were drinking, and approximately two weeks
before the shooting, during such an argument, Haygood hit
Stallings in the lip, making it swell for a few days. Mills
learned of the incident after observing Stallings'
swollen lip and was concerned for her friend.
September 16, 2011, Haygood went to a bar around noon and
stayed there until Stallings picked him up about 7 p.m. to
retrieve their vehicle from a repair shop. After that errand,
the couple returned to the bar and consumed a large amount of
alcohol throughout the evening. Haygood also took
"Molly." Mills joined them at the bar until shortly
before 1 a.m., when the three went to another bar. At
approximately 3 a.m., Haygood drove the three back to the
house he shared with Stallings. At this point, all three were
very intoxicated but were not arguing.
and Mills entered the house first, awakening G.T., who had
been asleep on the couch. The trial testimony of Haygood,
Stallings, and G.T. as to what transpired after Haygood
entered the house differed in some respects. The common
theme, however, is that Mills demanded that Haygood leave the
house, prompting an argument between them during which Mills
threatened to call 911. The argument culminated with Haygood
fatally shooting Mills and leaving the house. Haygood's
version had Mills rushing him with a knife or what appeared
to be a knife, after having said, "I'm gonna show
you." Neither Stallings nor G.T. heard Mills threaten to
do anything but call 911; neither saw Mills try to attack
Haygood with a knife.
Kansas City, Kansas, police officers testified that, at the
house following the shooting, Stallings told them that she
and Haygood had gotten into an argument; Mills tried to
intervene and said she was going to call 911; and at that
point Haygood shot Mills. One of the officers also recalled
Stallings relating that Mills was privy to the history of
domestic violence between Stallings and Haygood.
was subsequently apprehended at his sister's house, where
the police found a Smith & Wesson .40 caliber handgun. A
firearm and tool mark examiner testified that a spent casing
found at the crime scene and the bullet recovered from
Mills' body matched that handgun. The coroner could not
determine the range at which the fatal shot had been fired
but opined that Mills died instantly and would not have been
able to move after she was shot. That would mean that Haygood
shot Mills while she was standing at the location in the
house where her slain body was depicted in the crime scene
defense objection, the trial court allowed Stallings to
testify about the prior domestic violence that resulted in
her swollen lip, ruling it was admissible under K.S.A. 2017
Supp. 60-455. G.T. also testified that he recalled the
swollen lip, although he did not witness the incident.
instruction conference, the trial court denied the defense
request for a self-defense instruction and a lesser included
offense instruction on involuntary manslaughter imperfect
self-defense, i.e. Haygood committed a lawful act in an
unlawful manner. The trial court instructed the jury on the
elements of premeditated first-degree murder and the lesser
included offenses of second-degree intentional murder and
voluntary manslaughter based on imperfect self-defense
(unreasonable but honest belief that circumstances existed
justifying deadly force in self-defense). The court also
instructed the jury on the defense of voluntary intoxication.
The jury convicted Haygood of premeditated first-degree
unsuccessful motion for new trial, Haygood again objected to
the use of K.S.A. 2017 Supp. 60-455 evidence and the failure
to give a self-defense instruction. Haygood timely appeals.
of K.S.A. 2017 Supp. 60-455 Evidence
contends that the trial court erred by allowing the State to
present evidence of Haygood's prior acts of domestic
violence against Stallings as an exception to the prohibition
in K.S.A. 2017 Supp. 60-455 against admitting evidence of
specific instances of prior crimes or civil wrongs. He argues
that the evidence was not relevant to prove a disputed
material fact; that it was used to prove Haygood's
propensity to commit the crimes charged; and that its
prejudicial effect outweighed its limited probative value.
admissibility of all evidence of other crimes and civil
wrongs is governed by K.S.A. 2017 Supp. 60-455. State v.
Richard, 300 Kan. 715, 719, 333 P.3d 179 (2014);
State v. Gunby, 282 Kan. 39, 57, 144 P.3d 647
(2006). K.S.A. 2017 Supp. 60-455 provides in relevant part:
"(a) Subject to K.S.A. 60-447, and amendments thereto,
evidence that a person committed a crime or civil wrong on a
specified occasion, is inadmissible to prove such
person's disposition to commit crime or civil wrong as
the basis for an inference that the person committed another
crime or civil wrong on another specified occasion.
"(b) Subject to K.S.A. 60-445 and 60-448, and amendments
thereto, such evidence is admissible when relevant to prove
some other material fact including motive, opportunity,
intent, preparation, plan, knowledge, identity or absence of
mistake or accident."
three-part Gunby test that a trial judge must use in
determining whether to admit evidence under K.S.A. 2017 Supp.
60-455, the corresponding appellate standards of review, and
the trial judge's duty to provide a limiting instruction
are as follows:
"'First, the district court must determine whether
the fact to be proven is material, meaning that this fact has
some real bearing on the decision in the case. The appellate
court reviews this determination independently, without any
required deference to the district court.
'Second, the district court must determine whether the
material fact is disputed and, if so, whether the evidence is
relevant to prove the disputed material fact. In making this
determination, the district court considers whether the
evidence has any tendency in reason to prove the disputed
material fact. ...