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.
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.
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
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.
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
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 is not entitled to reversal of his conviction under
the cumulative error doctrine.
from Butler District Court; Charles M. Hart, judge.
Maharry, of Kansas Appellate Defender Office, argued the
cause and was on the briefs for appellant.
M. Pierce, assistant county attorney, argued the cause, and
Derek Schmidt, attorney general, was with her on the brief
direct appeal by defendant Howard Pruitt raises five
challenges to his first-degree premeditated murder conviction
for the shotgun killing of Phillip Little.
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.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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."
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
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.
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."
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
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."
the detective questioned Pruitt the same day, Pruitt
acknowledged that he and Little had ongoing issues, but he
denied shooting Little.
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.
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
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."
voir dire and the parties' opening statements, the
district judge provided the jury with preliminary
"Now that you have been chosen as jurors for this trial,
you're required to decide the case only on the evidence
"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
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
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."
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.
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.
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.
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.
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."
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