BY THE COURT
the conflicting evidence admitted at trial in this homicide
case, the district judge erred by refusing to give lesser
included offense instructions for reckless second-degree
murder, reckless involuntary manslaughter, and imperfect
self-defense involuntary manslaughter. None of these errors,
evaluated for harmlessness under the state statutory
standard, was reversible standing alone.
district judge is not required to instruct a jury to consider
a lesser included homicide offense simultaneously with any
greater homicide offense.
Autopsy photographs, like other photographic evidence, are
relevant if they have a reasonable tendency to prove a
material fact. A district judge does not abuse his or her
discretion by admitting autopsy photographs that are used by
an expert witness to explain the path of a fatal bullet and
the victim's resulting skull fractures.
prosecutor commits error when he or she states during closing
arguments that a car was "stolen" despite an
absence of evidence supporting a theft or criminal
deprivation. In this case, such an error was harmless under
the governing constitutional standard.
continuance hearing is a critical stage at which a criminal
defendant has a constitutional right to be present, unless he
or she has knowingly and voluntarily waived that right.
Assuming a violation of the defendant's right occurred in
this case, the error was harmless under the governing
Cumulative error does not require reversal of the
defendant's convictions in this case.
from Sedgwick District Court; Stephen J. Ternes, judge.
Tate Mann, of Kansas Appellate Defender Office, argued the
cause, and Sam Schirer, of the same office, was on the briefs
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 Grover D. James' direct appeal of his
convictions for first-degree premeditated murder of Leon
McClennon and criminal possession of a firearm.
challenges the district judge's refusal to give certain
lesser included homicide instructions and failure to tell the
jury to consider certain homicide offenses simultaneously. He
also challenges the admission of autopsy photographs into
evidence, alleges reversible prosecutorial error, and asserts
he was deprived of his constitutional right to be present at
all critical stages of his trial. James also argues that
cumulative error requires reversal of his convictions.
we identify errors in James' case, the errors are not
reversible standing alone or cumulatively. For the reasons
outlined below, we affirm James' convictions.
and Procedural Background
of James' appellate issues require an unusually extensive
review of the factual and procedural background of this case.
night of May 8 and into the early morning hours of May 9,
2015, Rance Kindred's friends and family threw him a
birthday party, held in the basement of the Parrot-fa-Nalia
dress shop in Wichita. The party was attended by a variety of
Kindred's friends and family, including: Grover
"Boo" James, Kindred's friend; August Hughes,
James' girlfriend; Keialsha James, James' sister;
Torey West, Kindred's girlfriend and James' sister;
Artadius "Ta Ta" Johnson, Kindred's son; and
Leon "Fat Head" McClennon, Johnson's cousin and
and McClennon ended up at the party after Johnson spoke with
Kindred on the phone. At the party, Kindred introduced James
and Johnson for the first time. Kindred would testify that he
had "wanted them to meet each other" but "it
went bad right away because Ta Ta [Johnson] swolled up,"
that is, swelled his body in a confrontational manner. See
(last visited June 28, 2019). The tension between the two
escalated throughout the evening over a perception that
Johnson was "mugging" James. On more than one
occasion, Kindred told Johnson that he needed to
"squash" his issues with James.
point in the evening, Johnson left with McClennon and another
cousin before he returned to the party to "chill with
[his] auntie and stuff." According to Johnson, Kindred
made another attempt to convince Johnson to
"squash" things with James, which caused Johnson to
"want to fight." But before things escalated too
far, another of Johnson's cousins-Anita Jones-grabbed him
and calmed him down.
this confrontation, many of the guests began leaving the
party. Johnson and McClennon stayed to help clean up. James
and Hughes initially left the party, but, Hughes would
eventually testify, she remembered she had offered to help
clean up; so she and James went back.
camera footage captured what happened in the Parrot-fa-Nalia
parking lot and outside the entrance to the basement upon
James and Hughes' return. The footage would later be
admitted at James' trial.
James and Hughes pulled into the Parrot-fa-Nalia parking lot,
Johnson and McClennon were outside. At that point, Johnson
and McClennon immediately went down to the basement. Trial
testimony would establish that the door at the bottom of the
stairs to the basement was shut and could not be opened from
Surveillance footage from inside the door shows that
Keialsha, James' sister, opened the door. Johnson and
McClennon can be seen coming through the door, followed
almost immediately by James. Hughes came through the door a
events that followed inside the basement-outside the view of
any surveillance camera-were disputed at trial. It is
undisputed, however, that James fired two shots, one of which
hit McClennon in the head, killing him. The internal
surveillance footage then shows, approximately 37 seconds
after the group had moved off camera, McClennon stumbling
headfirst to the floor, where his motionless body comes to
rest. While McClennon's body is lying on the ground,
James walks past it and back up the stairs. Hughes follows
the shooting, James drove Hughes' car to Oklahoma. He was
apprehended there and was charged with first-degree
premeditated murder and unlawful possession of a weapon.
first appearance on the charges was in later October 2015. On
December 14, 2015, James filed with the clerk of the court a
letter he had written to his then-attorney Brad Sylvester.
The letter asked Sylvester to take certain actions in his
case. James asked Sylvester to "file and pursue any and
all necessary paperwork to insure a speedy trial, I'd
also ask you to file a 180 day writ [and] a motion for
statutory speedy trial." James later reiterated a
request that Sylvester "vigor[o]usly pursue" his
"speedy trial" and asked that Sylvester "not
continue my preliminary hearing . . . or continue my trial
ever." James also asked to be present at "any and
all hearings . . . when my case is d[i]scussed."
District Court Judge David J. Kaufman found probable cause at
James' January 13, 2016, preliminary hearing, James
waived arraignment and the case was set for jury trial on
February 16, 2016.
February 16, Sylvester requested a continuance in a filing
titled, "Notice and Order Concerning Defense
Counsel's Request to Continue Trial after Consultation
with the Defendant." District Court Judge Jeffrey E.
Goering granted the request to continue the case and reset
trial for March 14, 2016. The form document, which was signed
and submitted by Sylvester, contained the following
"'In submitting this request to the Court, the named
defense counsel represents to the Court that counsel has
consulted with the named defendant about this continuance and
this continuance is to be charged to the defendant pursuant
to K.S.A. 22-3402(g).'"
March 16, Sylvester asked for another continuance, using an
identical form document. Judge Goering again granted the
request and reset trial for June 6, 2016.
April 14, James filed a motion seeking to dismiss counsel.
James alleged an irreconcilable conflict and complete
breakdown of communication. That same day, the motion was set
for hearing on April 22, 2016.
was present for the motion hearing before District Court
Judge John J. Kisner, Jr. On April 22 Judge Kisner
acknowledged James' previous concerns over a speedy
trial. Judge Kisner informed James that recent caselaw
required that any further continuances would require James to
sign off on them or attend a hearing. Judge Kisner denied the
motion to dismiss counsel and informed James that any
appointment of new counsel would mean more time for trial
preparation. James responded, "I'm not worried about
the hearing, the court and parties discovered that a June 6
start date for trial-the date that had been set on March
16-conflicted with the court's schedule. Trial was reset
for July 11, 2016. Judge Kisner advised James that the time
would not be charged to the State and asked if James was
agreeable to the new trial date. James said he understood and
agreed to the new date.
15, 2016, James filed an Objection to Continuance.
"COMES NOW, the Defendant, pro se, formally
objecting to any continuance sought by either the State or
defense counsel in the above entitled action. The defendant
further asserts his statutory, K.S.A. 22-3208(7), and
Fourteenth Amendment Due Process right to appear at all
'critical stages' in a prosecution including any
proceeding where the court may order that the Defendant has
waived any constitutional or statutory right."
same day, James moved to dismiss the case with prejudice.
James alleged that his "statutory right to a fast and
speedy trial, and his constitutional right to Due Process and
fast and speedy trial" had been violated.
motion, James set out a timeline of events, alleging that his
trial had been continued by his attorney on February 16,
March 14, and June 6, outside of James' presence and
against his "clear wishes." James further alleged,
"At no time has the defendant been present in the
courtroom or by video, and asked if he agreed to the
continuance or given the opportunity to object to the
continuance" and that "[t]here are no signed
waivers of speedy trial or signed acknowledgments of
continuance." According to James, the time the State had
to bring him to trial under K.S.A. 22-3402 began to run on
January 13, 2016, the date of his preliminary hearing, and
expired on June 12, 2016.
same day James filed his pro se motion, the district court
clerk sent Sylvester a letter advising him of the filing and
saying that no further action would be taken unless Sylvester
20, James filed another motion seeking to have Sylvester
replaced. In an affidavit filed the next day, James alleged
he had informed Sylvester in writing that he wanted to be
present at all hearings but Sylvester had nevertheless failed
to consult him about any of the previous continuances. James
further alleged that he had not been given the opportunity to
appear at any of the continuance hearings and that, had he
been present, he would have objected to any continuance.
1, Judge Kaufman heard James' motion for new counsel.
James explained that he felt there was a communication
breakdown between himself and Sylvester because of the
continuances Sylvester had requested without James'
State contradicted James' assertion that he had not been
present or known about any of the continuances, alerting the
court to James' presence at the April 22 hearing and his
agreement to the continuance granted that day.
acknowledged that the State was correct but insisted the
April 22 continuance was not the only one.
"It's several continuance[s]. I have it in my ROA
that it's been continued by the defense that I did not
sign off on or anything, didn't know it. I also filed a
motion for . . . dismissal of case for fast and speedy trial
violation, constitutional and statutory rights."
State conceded that James had filed a motion to dismiss based
on a speedy trial violation. The motion had not been docketed
for hearing because it was filed pro se.
Kaufman ultimately granted James' request for new
11, Judge Goering continued the trial setting again despite
James' in-court refusal to agree to it. James' new
counsel had yet to receive any discovery. The State asked for
a continuance of the trial until September 12 because of the
unavailability of one of its witnesses. Judge Goering granted
the State's request over James' objection and set a
"firm" trial date of September 12.
counsel was appointed on three occasions in late August and
early September, culminating in Steven Mank's appointment
on September 1. Mank would represent James through the trial
but be replaced before sentencing.
September 12, Judge Goering signed off on another trial
continuance, continuing the case from September 12 to
November 14, 2016. His order is a form document similar to
those filed by Sylvester in February and March. However,
unlike the earlier forms, this one required the
defendant's signature approving the continuance. The form
shows James signed and dated it on September 10.
trial began on November 14, 2016, and was presided over by
District Court Judge Stephen Ternes.
trial, the video surveillance footage from Parrot-fa-Nalia
was introduced through the testimony of Wichita Police
Detective Robert Chisholm.
testimony was followed by the testimony of Dr. Timothy
Gorrill, the forensic pathologist who conducted the autopsy
Gorrill testified, Mank objected to admission of certain of
the State's anticipated autopsy photograph exhibits. Mank
argued that the exhibits in question "are not necessary
to describe the manner of death or what happened to the
victim in this case. They are rather strong photographs. . .
. [W]e would object to them for being overly gruesome and . .
. not warranted in this case." The State argued that the
challenged photos were necessary for Gorrill to explain the
Ternes overruled the objection. He acknowledged that the
photos were "somewhat graphic," but "autopsy
photos tend to be that way." Without hearing
Gorrill's testimony, Judge Ternes could not say the
challenged photos were unnecessary. Mank renewed his previous
objection when the State introduced the autopsy photos during
Gorrill's testimony. The judge again overruled the
first four photos showed McClennon's body, including
closeups of his head and the gunshot wound. Specifically, one
image showed an "obvious injury" at the bottom of
McClennon's ear. Another showed a "skin defect, a
hole, a gunshot wound." Gorrill concluded that this
injury was an entry wound because there was no "exit
defect" and they had "recovered a bullet along the
following photos were the focus of the defense objection.
38 showed "the top of Mr. McClennon's skull"
after his scalp had been "reflect[ed] back . . . with a
scalpel." Gorrill highlighted a fracture in
McClennon's skull that could be seen in the image.
39 showed the base of McClennon's skull after a bone
scalpel or saw had been used "to remove that part of the
skull" and then the brain removed. Gorrill noted
multiple skull fractures in the image. Based on the location
of the fractures, Gorrill was able to describe the likely
path of the bullet. Gorrill concluded that the bullet entered
the left side of McClennon's head, traveled through his
skull, and caused the fractures shown in the photo.
40 showed "the interior of [McClennon's] neck, the
vertebral column" after the "neck structures"
had been removed. Gorrill pointed out the projectile, which
was "in one piece up here in the back of the neck"
in the photo. He then indicated on his own body the
approximate location where the projectile would have been
lodged. He described the location as "[k]ind of in the
concluded "within a reasonable degree of medical
certainty" that the cause of McClennon's death was a
"[g]unshot wound to the head" and that the manner
of death was homicide.
State's main witnesses on the events that occurred off
camera in the basement were Johnson and Kindred.
testified that he and McClennon had not planned on going to
the party that night, but Kindred called Johnson and asked
him to come. Johnson did not know James but had seen him
Johnson arrived at Parrot-fa-Nalia, he took a phone call in
the parking lot. Kindred approached with James. Kindred
"[t]old me [James'] name, said it was Boo, told Boo
like who I was, told us we need to squash whatever was going
said James was upset about Johnson's romantic
relationship with James' niece. Johnson said he told
James, "I was grown, she was grown." "He
wanted me to leave her alone, told me to leave her alone and
end it. I felt disrespected by it because we both
point, Johnson's cousin grabbed him and they left the
party with McClennon. They were gone 45 minutes to an hour.
After Johnson "cooled down a little bit," Johnson
and McClennon returned to the party. Johnson testified that
he had just gotten out of prison and "wanted to spend
time with everybody."
and James approached Johnson again after he returned. Kindred
told Johnson that he was "mugging" James and that
"you know, need to squash this, this and that. We need
him on our side. I got upset. That's when I wanted to
fight. That's what I like to do, so I wanted to box. My
cousin, Puddin, she came and stopped me. Anita Jones, she
came and grabbed me, took me to the back, you know. She tried
to squash it, break it up. They kept messing with me, so
everybody got kind of mad. That's when my [dad] said the
matter was over with, everybody started leaving and
denied "mugging" James at the party, saying,
"No. If I was mugging him, I would have approached
him." For clarity, the Urban Dictionary describes
"mugging" as "star[ing] or look[ing] at
someone with malignant thoughts or intentions." Urban
visited June 28, 2019).
people, including James, left the party, Johnson and
McClennon stayed with Kindred and several members of
after Johnson finished helping to load speakers in the
parking lot, he "heard some tires screeching pulling in
the parking lot." Johnson looked up and saw "a
black Jeep Cherokee . . . pulling in real fast." The
driver was wearing a blue hat ...