BY THE COURT
felony-murder statute, K.S.A. 2018 Supp. 21-5402(a)(2),
requires proof that the defendant engaged in dangerous,
felonious conduct and that a death occurred as a result of
that conduct. Intent to kill is not an element of felony
Kansas felony-murder statute does not operate as an
unconstitutional, conclusive presumption that invades the
trial judge's jury instruction that states, "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," is legally
is not prosecutorial error to state to a prospective juror,
"So we don't have that luxury as a juror when it
comes to jury instructions. And what that means is at the end
of the trial you will get a packet of jury instructions and
that is the law in the case. You don't get to go back and
test for a disproportionality challenge based on § 9 of
the Kansas Constitution Bill of Rights includes both legal
and factual inquiries. An argument that a sentence violates
§ 9 because it is cruel or unusual cannot be raised for
the first time on appeal.
hard 25 life sentence is not categorically disproportionate
when applied to young adults convicted of felony murder.
from Johnson District Court; Timothy P. McCarthy, judge.
T. Maharry, of Kansas Appellate Defender Office, argued the
cause, and Carol Longenecker Schmidt, of the same office, was
on the brief for appellant.
M. Gontesky, assistant district attorney, argued the cause,
and Stephen M. Howe, district attorney, and Derek Schmidt,
attorney general, were with him on the brief for appellee.
Patterson appeals from his convictions and sentence arising
from an armed robbery in which a victim was killed by an
accomplice. He argues: (1) his felony-murder conviction
violates due process because a jury was not required to
determine he possessed a particular criminal mental state;
(2) the district court's instructions to the jury and a
prosecutor's voir dire comments improperly prevented the
jury from exercising its nullification power; (3) his hard 25
life sentence for felony murder is disproportionate to his
crime in violation of § 9 of the Kansas Constitution
Bill of Rights and the Eighth Amendment to the United States
Constitution; and (4) his Sixth Amendment rights under
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000), were violated when prior
convictions were used to elevate his sentence without being
proved to a jury beyond a reasonable doubt. We affirm.
and Procedural Background
and three accomplices-De'Anthony Wiley, Hakeem Malik, and
Nicquan Midgyett-tried to rob a Shawnee gun store, She's
A Pistol, at gunpoint. Jon Bieker and his wife, Rebecca, were
the store's proprietors. Jon was killed.
incident began when Wiley entered the store dressed as a
female and feigned interest in some merchandise. Rebecca
attended to him. Wiley pulled out a phone from his pocket and
began speaking into it. Patterson, Malik, and Midgyett then
entered the store. Wiley and Patterson pointed weapons at
Rebecca. Midgyett punched Rebecca and knocked her
unconscious. Jon emerged from the store's back room with
a gun. The robbers fled as shots were exchanged.
fatally shot Jon. Wiley was shot and found inside the store.
Midgyett was shot and found with Malik at a nearby house.
Patterson sustained two gunshot wounds. Police found him
lying in the grass near the store. Jon fired at least one
bullet that hit Patterson. The State charged Patterson with
felony murder, attempted aggravated robbery, conspiracy to
commit aggravated robbery, and aggravated battery.
trial, Patterson's counsel admitted Patterson conspired
and attempted to rob She's A Pistol but argued he should
not be liable for Jon's death because his participation
ended when he left the store. The jury convicted Patterson of
felony murder, conspiracy to commit robbery, attempted
aggravated robbery, and a lesser form of aggravated battery.
separate sentencing proceeding, the jury declined to find two
aggravating circumstances alleged by the State: Patterson was
not amenable to probation and he presented a danger to the
community. The only additional evidence introduced at this
sentencing proceeding was testimony from an administrator in
the office that supervised Patterson's Missouri probation
and Patterson's mother. The probation administrator
testified Patterson was on probation for a weapons violation,
failed to report several times, and traveled outside the
state without permission. His mother testified Patterson was
19 when he committed the crimes at She's A Pistol and had
outgrown his clothes while in jail awaiting trial.
district court sentenced Patterson to life imprisonment with
25 years before parole eligibility for the murder conviction
and consecutive 47-, 34-, and 13-month prison terms for the
remaining three convictions.
timely appealed. Jurisdiction is proper. K.S.A. 2018 Supp.
22-3601(b)(3) (Supreme Court has jurisdiction over life
imprisonment cases); K.S.A. 2018 Supp. 22-3601(b)(4) (Supreme
Court has jurisdiction over off-grid crimes); K.S.A. 2018
Supp. 21-5402(b) (felony murder is an off-grid crime).
argues for the first time on appeal that his due process
rights were violated when he was convicted of first-degree
murder under the felony-murder statute. He claims this occurs
because felony murder does not require proof beyond a
reasonable doubt that the defendant "intentionally,
knowingly, or recklessly" caused the victim's death.
See K.S.A. 2018 Supp. 21-5202(a). The essence of
Patterson's claim is that Kansas law requires an
intent-to-kill element for homicide that the jury is not
informed about in the felony-murder context because, he
alleges, that intent is conclusively presumed based only on
the jury's finding the defendant was participating in an
inherently dangerous felony.
acknowledges this issue is advanced for the first time on
appeal, which raises a preservation concern. Generally, the
court declines to address constitutional issues for the first
time on appeal. State v. Thach, 305 Kan. 72, 81, 378
P.3d 522 (2016). But an appellate court may do so if the
party attempting to raise the issue demonstrates at least one
of three recognized exceptions:
"'(1) [T]he newly asserted claim involves only a
question of law arising on proved or admitted facts and is
finally determinative of the case; (2) the claim's
consideration is necessary to serve the ends of justice or to
prevent the denial of fundamental rights; or (3) the district
court's judgment may be upheld on appeal despite its
reliance on the wrong ground or reason for its decision.'
State v. Anderson, 294 Kan. 450, 464-65, 276 P.3d
200 (2012)." State v. Hirsh, 310 Kan. 321, 338,
446 P.3d 472 (2019).
See Thach, 305 Kan. at 81 (party asserting issue
must explain why exception applies).
invokes the first exception. And the State does not object.
But the State's failure to object does not control.
Deciding whether due process has been afforded is a question
of law over which a court has unlimited review. Stewart
v. State, 310 Kan. 39, 43, 444 P.3d 955 (2019). In this
instance, we have decided to proceed to the merits.
process demands the State prove every element of the charged
crime. State v. Banks, 306 Kan. 854, 858, 397 P.3d
1195 (2017) (citing In re Winship, 397 U.S. 358,
361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 ). The United
States Supreme Court has held that when intent is an element
of an offense,
"the trial court may not withdraw or prejudge the issue
by instruction that the law raises a presumption of intent
from an act. . . . A conclusive presumption which testimony
could not overthrow would effectively eliminate intent as an
ingredient of the offense. . . . [T]his presumption would
conflict with the overriding presumption of innocence with
which the law endows the accused and which extends to every
element of the crime." Morissette v. United
States, 342 U.S. 246, 274-75, 72 S.Ct. 240, 96 L.Ed. 288
Court has held that in a prosecution for deliberate homicide
requiring proof the defendant "purposely or
knowingly" caused the victim's death, it was
improper to instruct the jury that "'the law
presumes that a person intends the ordinary consequences of
his voluntary acts.'" Sandstrom v. Montana,
442 U.S. 510, 512, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). The
Court reasoned that,
"Upon finding proof of one element of the crime (causing
death), and of facts insufficient to establish the second
(the voluntariness and 'ordinary consequences' of
defendant's action), [the jury] could reasonably have
concluded that they were directed to find against defendant
on the element of intent. The State was thus not forced to
prove 'beyond a reasonable doubt . . . every fact
necessary to constitute the crime . . . charged' and
defendant was deprived of his constitutional rights . . . .
[Citation omitted.]" 442 U.S. at 523.
claims the felony-murder statute operates in this prohibited
manner. In Kansas, "[m]urder in the first degree is the
killing of a human being committed: (1) Intentionally, and
with premeditation; or (2) in the commission of, attempt to
commit, or flight from any inherently dangerous felony."
K.S.A. 2018 Supp. 21-5402(a). Our caselaw has long recognized
"[i]n felony-murder cases, the elements of malice,
deliberation, and premeditation which are required for murder
in the first degree are deemed to be supplied by felonious
conduct alone if a homicide results. To support a conviction
of felony murder, all that is required is to prove that a
felony inherently dangerous to human life was being committed
and that the homicide which followed was a direct result of
the commission of that felony." State v.
Hobbs, 248 Kan. 342, 345-46, 807 P.2d 120 (1991),
overruled on other grounds by State v. Berry, 292
Kan. 493, 254 P.3d 1276 (2011).
also State v. Hoang, 243 Kan. 40, 41-42, 755 P.2d 7
court has explained that "[f]elony murder . . .
transfers the intent to commit an inherently dangerous felony
to an unintended death that occurs during the commission of
the underlying felony. It is felonious intent, rather than
homicidal intent, that provides the malice and intent
required for a first-degree felony-murder conviction."
State v. Seba, 305 Kan. 185, 196, 380 P.3d 209
points out that under Kansas law, "[e]xcept as otherwise
provided, a culpable mental state is an essential element of
every crime defined by [the criminal] code. A culpable mental
state may be established by proof that the conduct of the
accused person was committed 'intentionally,'
'knowingly' or 'recklessly.'" K.S.A.
2018 Supp. 21-5202(a). And "[i]f the definition of a
crime does not prescribe a culpable mental state, a culpable
mental state is nevertheless required unless the definition
plainly dispenses with any mental element." K.S.A. 2018
Supp. 21-5202(d). Patterson contends that by
"transferring the intent to commit the underlying felony
to prove the intent required to commit felony murder, Kansas