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State v. Pruitt

Supreme Court of Kansas

December 6, 2019

State of Kansas, Appellee,
Howard R. Pruitt, Appellant.


         1. Prosecutor's statement in summing up testimony about alleged murder weapon, "This seems to be the shotgun, folks. I don't think there's a lot of question about that at this point," was an impermissible personal opinion; but it does not require reversal of the defendant's premeditated first-degree murder conviction.

         2. Prosecutor's statement that the victim deserved jurors' "consideration" was not error, when the context of the statement demonstrates that the prosecutor was not attempting to invoke the jury's sympathy.

         3. Prosecutor's statement, "Folks, if you're convinced beyond a reasonable doubt that those three elements exist, you must find the defendant guilty of murder in the first degree, as he has been charged," was not an impermissible misstatement of the law because it forbade jury nullification.

         4. Even if the district judge's failure to instruct sua sponte on reckless second-degree murder and reckless involuntary manslaughter in this case is assumed to be error, the error is not reversible under a clear error standard, when there was overwhelming evidence that whoever shot the victim to death did so by firing a shotgun loaded with triple-aught buck from close range after lying in wait for about 10 minutes, and strong evidence demonstrates that the person who shot the victim was the defendant.

         5. A district judge's instructions to the jury, (a) "Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be"; (b) "At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict"; and (c) "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must decide the case by applying these instructions to the facts as you find them," are correct statements of the law and not erroneous under State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019). They do not direct a verdict of conviction or prevent a jury from exercising its power of nullification.

         6. The district judge in this case did not abuse his discretion in finding that no fundamental failure due to jury misconduct occurred in the trial of the defendant's case. The judge was able to observe the defendant's daughter, who testified about observing a juror sleeping, and evidently made a negative credibility judgment. The judge also made a careful record of other, unrelated trial participants' recollections, including his court reporter's and his own; and those recollections did not match that of the defendant's daughter.

         7. Defendant is not entitled to reversal of his conviction under the cumulative error doctrine.

          Appeal from Butler District Court; Charles M. Hart, judge.

          Peter Maharry, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

          Cheryl M. Pierce, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.


          BEIER, J.

         This direct appeal by defendant Howard Pruitt raises five challenges to his first-degree premeditated murder conviction for the shotgun killing of Phillip Little.

         Pruitt asserts that the prosecutor committed error during closing argument, that the district judge should have instructed the jury on lesser included offenses of reckless second-degree murder and reckless voluntary manslaughter, that the jury's power of nullification was improperly foreclosed by erroneous instructions, that a new trial should have been granted because one juror slept during part of the proceedings, and that his conviction is infected by cumulative reversible error.

         We reject all of Pruitt's arguments on error save two, and we conclude that, even if we find one error and assume the existence of another, those two errors do not individually or collectively command reversal of Pruitt's conviction. This is a case in which the defendant's guilt of first-degree premeditated murder was supported by truly overwhelming evidence. The errors could not have made a difference in the outcome.


         Bad blood developed between Pruitt and Little before the fatal shooting. Nathan Coe, aware of their ongoing disagreement and having come to understand that Pruitt was interested in harming or paying someone else to harm Little, called Pruitt on the night of the shooting to let him know that Little was at Skylar Morgan's trailer home.

         Coe and his father had been hanging out with Little and others at Morgan's that evening. The others at the trailer were Morgan, Bobbie Myers, and Matthew Kreusel. About 11 p.m., Coe and Myers left to buy liquor, eventually obtaining vodka at the home of Michelle Morris. When they returned to the trailer, they disagreed on whether the correct amount had been paid for the vodka, and Kreusel drove Myers back to Morris' house to settle the issue. This left Coe, his father, and Little awake at the trailer; Morgan was already asleep in his bedroom.

         According to Coe, while Myers and Kreusel were gone, he and Little stepped onto the porch of the trailer and Pruitt, who had been waiting outside, immediately fired a shotgun at Little. Pruitt then fled, while Coe ran back into the trailer. Morgan would testify at Pruitt's eventual trial that Coe woke him up and told him Little was dead on the porch. Morgan called 911 and "got everybody in the bedroom because [he] was scared." When Coe asked to borrow Morgan's truck, Morgan told him, "Yeah, take my truck; get out of here. I'm scared; you're scared."

         When Myers and Kreusel returned a few minutes later, Morris was with them. As they pulled up, Myers noticed that both Morgan's truck and the car Coe and his father had arrived in were gone. When Myers saw Little lying on the porch, she screamed for Morgan to come help her. Morgan came outside and told her Little had been shot and directed her to "step away."

         When El Dorado police officers arrived at Morgan's trailer, they found Little dead on the porch and Morgan, Myers, Kreusel, and Morris at the scene. They soon learned that Coe and his father also had been at the trailer that evening. Eventually, Coe returned; and the officers brought him into their station for an interview.

         Coe's story shifted from less to more detailed over the series of interviews that followed. At first he shared only the basics: He heard a "boom" when he left the trailer with Little, realized Little had been shot, went into the trailer and asked to borrow Morgan's truck, and left. His later version of events included his identifications of the gun as a .410 double-barreled sawed-off shotgun and the shooter as Pruitt. He also told law enforcement that Pruitt and Jake Perry had put a "bounty" on Little, which Little had mentioned when they talked at Morgan's. Coe claimed "there had been $5, 000 offered" but Little had "laughed it off."

         According to the interviewing detective, Coe said

"that he had contacted Mr. Pruitt by telephone and informed Mr. Pruitt that . . . Mr. Little was at the trailer. [Coe] said that he was aware that Mr. Pruitt was . . . looking for Mr. Little. And he had also said that Mr. Little had made comments throughout the evening that he was wanting somebody to bring Mr. Pruitt to him.
. . . .

"He'd explained . . . that the shooter . . . had popped up at the deck and had fired. And . . . that he had r[u]n east."

         Coe also said he had not expected Pruitt to bring a gun with him to the trailer. Rather, he thought Pruitt would give Little an "[a]ss-whooping, very minimal."

         When the detective questioned Pruitt the same day, Pruitt acknowledged that he and Little had ongoing issues, but he denied shooting Little.

         The State charged both Pruitt and Coe in Little's murder. Coe was in custody for 104 days before the charges against him were dismissed with prejudice and he was released.

         Investigators were, at least initially, unable to find the gun used in the shooting. After an anonymous Crime Stoppers tip, a sawed-off single-barrel shotgun that, according to the retrieving officer, "looked like a .410" was found in the Walnut River.

         When Pruitt's case went to trial, before voir dire began, the district judge outlined for potential jury members how the matter would proceed. The judge's outline included:

"After each side completes its case, I must then instruct you on the law that applies to a given case. Such law you must follow, and you must not substitute for it opinions of your own as to what you think the law should be.

"As jurors, it is your duty to hear the evidence and to determine the facts from the evidence. You are then obliged to apply the law as given to the facts as you find them to be and, thus, to arrive at your verdict."

         After voir dire and the parties' opening statements, the district judge provided the jury with preliminary instructions, including:

"Now that you have been chosen as jurors for this trial, you're required to decide the case only on the evidence admitted.

"At the end of the case, I will instruct you on the law that you must apply to the evidence in order to reach a verdict."

         In addition to the events described above, trial testimony included Myers' description of Coe's possession of a handgun on the night of the shooting and Kreusel's account of a conversation between Little and Coe, in which Coe said he "would be able to get a lot of money" if he were to "pop [Little] in the head." Little's reaction to this statement, according to Kreusel, was "laid back, drunk, sittin' on the floor."

         During cross-examination, Kreusel testified that he received a phone call the day after Little's murder from Coe's wife, in which she said Coe had been "offered money if he were to take [Little] out." Kreusel said his impression was that Coe's wife "had a feeling that he might do it, but . . . she wasn't sure."

         During Morgan's testimony at Pruitt's trial, in addition to confirming the facts recited above, Morgan said he knew that Little had been having "a little bit of trouble with [Pruitt]," although he had no details and did not know Pruitt personally. He had not heard Coe make the "pop" statement to Little, but Kreusel told Morgan about it the next morning.

         When Coe testified at Pruitt's trial, he admitted he had a gun in the car he was driving on the night of the murder. He described learning that Pruitt had problems with Little the first time he met Pruitt, about six weeks earlier. The problems had to do with Little's behavior toward a woman and Little spray-painting "meth-head" or "meth dealer" or something similar on Pruitt's house. Coe denied that Pruitt had ever suggested someone could make money by hurting or killing Little.

         The night of the shooting, Coe testified, he called Pruitt within 30 minutes of arriving at the trailer "to let him know the person he had issues with was around." He denied having told Little that "it would be worth a lot of money if [he] popped him right now." When Coe and Little stepped onto the porch of the trailer shortly before midnight, Coe heard a "very, very loud" gunshot immediately. Coe said that he did not realize right away that Little had been hit but that he heard a "ruckus" to his right, turned, and could see Pruitt had been the shooter.

         When Coe was asked if Pruitt had ever shown him a gun before the night of the murder, Coe said Pruitt had shown him a "sawed-off double barrel .410 shotgun" purchased from Billy Hise. Coe described the shooter's gun as "identical" to this .410 sawed-off shotgun.

         Coe also testified at trial that he had intended to borrow Morgan's truck earlier in the evening and that he did so after the shooting. He said he had not had a chance to ask earlier and was worried that the police who responded to the trailer would discover he had a "warrant . . . for my arrest from a previous incident with my wife."

         Several more witnesses testified about the recovered gun and linked Pruitt to it. Cassandra Maynard described statements made by her ex-boyfriend, Ralph Ballinger. He had told her

"[t]hat he was working with [Hise] and his younger son changing a tire the night of that and that, uh, a guy named Pops came and asked Ralph if he could drive him to a party so they could scare a gentleman, because . . . he was abusing a woman, supposedly, is what he said. And so he drove him over there and parked a couple blocks away. Um, Pops went up to the house, came back, told him: 'We need to get out of ...

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