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State v. Patterson

Supreme Court of Kansas

January 10, 2020

State of Kansas, Appellee,
Londro Emanuel Patterson III, Appellant.


         1. The 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 murder.

         2. The Kansas felony-murder statute does not operate as an unconstitutional, conclusive presumption that invades the jury's province.

         3. A 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 correct.

         4. It 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 debate that."

         5. The 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.

         6. A hard 25 life sentence is not categorically disproportionate when applied to young adults convicted of felony murder.

          Appeal from Johnson District Court; Timothy P. McCarthy, judge.

          Peter T. Maharry, of Kansas Appellate Defender Office, argued the cause, and Carol Longenecker Schmidt, of the same office, was on the brief for appellant.

          Jacob 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.

          BILES, J.

         Londro 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.

         Factual and Procedural Background

         Patterson 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.

         The 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.

         Wiley 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.

         During 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.

         At a 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.

         The 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.

         Patterson 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).

         The Felony-Murder Conviction

         Patterson 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.


         Patterson 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).

         Patterson 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.


         Due 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 [1970]). 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 (1952).

         And the 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.

         Patterson 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 that,

"[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).

         See also State v. Hoang, 243 Kan. 40, 41-42, 755 P.2d 7 (1988) (same).

         The 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 (2016).

         Patterson 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 ...

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