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May 27, 2016, Appellate Court Digests
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Kansas Supreme Court – Criminal

Constitutional law; Crimes and punishments; Jury instructions; Statutes
State v. Bernhardt
Sedgwick District Court – Affirmed
No. 111,639 – May 27, 2016

FACTS: Bernhardt convicted of premeditated first-degree murder for for killing victim by pulling her out of car to kick her head and torso multiple times, moving victim to car trunk to avoid hearing victim’s labored breathing, and dumping victim on side of road after considering and rejecting thought of taking victim to hospital. On appeal he claimed district court erred by (1) adding language to PIK instruction defining premeditation, (2) giving two separate jury instructions on intentional second-degree murder and reckless second-degree murder instead of a single instruction covering both lesser included offenses, and (3) failing to instruct on voluntary manslaughter where his assault of victim began after argument culminated in victim slapping Bernhardt while he was driving. He also claimed cumulative error denied him a fair trial. Finally, he claimed district judge erred by applying 2013 amendments to Kansas hard 50 sentencing scheme retroactively, and challenged the aggravating circumstances ultimately relied upon to support the hard 50 sentence.

ISSUES: (1) Premeditation instruction, (2) intentional second-degree murder and reckless second-degree murder instructions, (3) voluntary manslaughter, (4) cumulative error, (5) retroactive application of amended Hard 50 statute, (6) aggravating and mitigating circumstances

HELD: No error in district court’s deviation from PIK to include additional language suggested by State. The challenged additional paragraphs did not communicate that premeditation could be instantaneous, only that it could form during or after an initial altercation. Read as a whole, the instruction properly and fairly stated the law as applied to facts of the case. Jury was correctly informed that Bernhardt did not have to premeditate victim’s murder before pulling her out of car and beginning to kick her.

No error in giving separate instructions on intentional and reckless second-degree murder. Both were legally appropriate as lesser included offenses of first-degree murder, but PIK’s second-degree murder section does not clearly call for district judge to use a single instruction for both intentional and reckless second-degree murder.

On facts of case, a voluntary manslaughter instruction was not factually appropriate.

No errors in this case to support application of cumulative error doctrine. 

Alleyne v. United States, 570 U.S. __ (2013), was decided prior to Bernhardt’s conviction. Prior to sentencing, Kansas legislature amended K.S.A. 21-6620 to conform to Alleyne. Unlike previous cases, issue of retroactive application of 2013 amendment is ripe in this case. 2013 amendments to K.S.A. 21-6620 changed procedure for imposing a Hard 50 sentence for premeditated first-degree murder. District court correctly determined retroactive application of the amendments did not violate Ex Post Facto Clause.

On facts of this case, there was sufficient evidence that Bernhardt committed murder in an especially heinous, atrocious, or cruel manner and that this aggravating circumstance was not outweighed by any mitigating circumstances.

DISSENT (Johnson, J., joined by Luckert, J.): District court’s additions to PIK instruction defining premeditation were so contradictory and misleading that a lay juror could not have clearly understood premeditation. District court erred in denying Bernhardt’s request for Instruction on lesser included offense of voluntary manslaughter, which was factually appropriate in this case where evidence to reasonably justify a conviction for a heat of passion killing was as or more credible than evidence of premeditation. These errors were not harmless, and cumulative impact denied Bernhardt a fair trial. Would reverse and remand for new trial.

STATUTES: K.S.A. 2015 Supp. 21-5109(b), -5109(b)(1), -5109(b)(2), -5403(b), -6620(e)(5), -6624(e), -6624(f), -6625(a)1), -6625(a)(2), -6625(a)(6), 22-3414(3); K.S.A. 2014 Supp. 21-6620(e); K.S.A. 2013 Supp. 21-6620, -6620(c)

Kansas Supreme Court – Criminal

Crimes and punishment; Criminal procedure; Evidence
State v. Rosa
Leavenworth District Court – Affirmed
No. 108,807 – May 27, 2016

FACTS: Rosa was convicted of possession of methamphetamine found during search of residence Rosa owned and occupied with friends. On appeal Rosa claimed: (1) evidence was insufficient to show his knowledge and intent to possess drugs found in another’s bedroom; (2) district court erred by admitting evidence of Rosa’s prior drug use in violation of K.S.A. 2014 Supp. 60-455; and (3) prosecutor erred by arguing the home lab showed that Rosa was bringing methamphetamine into neighborhood of families and children. Court of appeals affirmed in unpublished opinion, finding in part harmless prosecutorial error.

ISSUES: (1) Sufficiency of the evidence, (2) Admission of prior drug use, (3) Prosecutorial misconduct

HELD: Evidence viewed in light most favorable to State was sufficient to prove Rosa owned the premises, exercised lawful and factual control over all areas of the house, and knew there was methamphetamine present in the house with a methamphetamine bedroom cook operation. Rosa’s knowledge of methamphetamine in the bedroom was a material fact in dispute. District court properly admitted evidence of Rosa’s prior acquaintance with methamphetamine as relevant to prove material fact. State did not cross-petition for review of appellate panel’s finding of prosecutorial error. Considering factors bearing on ultimate prejudice in context of prosecutorial misconduct, appellate panel’s finding of harmless error is affirmed.

STATUTES: K.S.A. 2015 Supp. 60-2103(b); K.S.A. 2014 Supp. 60-455, -455(b); K.S.A. 2010 Supp. 21-3601(q), -36a06(a)

Kansas Supreme Court – Criminal

Constitutional law; Crimes and punishments; Evidence; Jury instructions
State v. Walker
Sedgwick District Court – Affirmed
No. 110,712 – May 27, 2016

FACTS: Walker was convicted of first-degree premeditated murder. Citing Walker’s prior conviction for a similar killing, district court imposed hard 50 sentence. On appeal Walker claimed:  (1) district court failed to instruct jury on lesser included crime of second-degree intentional murder; (2) prosecutor’s statements during closing argument about leaving victims’ bodies like trash without dignity inflamed passions of jury or explained evidence in a repugnant manner; (3) district court should have suppressed statements Walker made during interrogation because Walker was mentally impaired by alcohol consumption and repeatedly invoked right to remain silent; (4) cumulative error denied Walker a fair trial; and (5) his hard 50 sentence was unconstitutional under Alleyne v. United States, 570 U.S. __ (2013).

ISSUES: (1) Jury instruction on lesser included crime, (2) prosecutor’s closing argument, (3) suppression of evidence, (4) cumulate error, (5) hard 50 sentence

HELD: Prosecutor’s statements are distinguished from repugnant imagery condemned in State v. McCaslin, 291 Kan. 697 (2011). Under facts in case, statements were well within wide latitude afforded prosecutors when discussing the evidence.

Substantial competent evidence supports district court’s finding that Walker’s mental condition was not impaired, and that statements were voluntary. One instance identified as an unambiguous invocation of right to remain silent. District court erred in denying motion to suppress, but error was harmless in this case.  

Assumed error in failing to instruct jury on second-degree murder, and error in admitting evidence obtained in violation of Fifth Amendment, were both harmless. No reasonable probability that cumulative errors affected the verdict or denied Walker a fair trial. 

Trial court did not engage in unconstitutional fact-finding by using aggravating factor of a prior conviction to impose hard 50 sentence in this case. When a defendant’s hard 50 sentence is based solely on fact of a prior conviction and no mitigating circumstances were presented, the sentence does not violate defendant’s right to jury determination of guilt pursuant to Alleyne.

STATUTE: K.S.A. 21-4636(a)

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