State v. Armstrong, 299 Kan. 405

Background

On Aug. 10, 2007 James Earl Dyer, Jr. was shot and killed at Rhonda Shaw’s house; shell casings and projectiles established multiple 9mm rounds from the same gun. Armstrong was present with co-defendants Kettler, Phillips, and Williams. Witnesses gave conflicting accounts about who held and fired guns.
Armstrong gave multiple inconsistent pretrial statements (ranging from complete denial to admitting premeditated intent) and a sworn statement implicating himself; he later repudiated those statements and testified at trial with a different version.
At retrial (after severance), the jury convicted Armstrong of premeditated first-degree murder and criminal possession of a firearm; he received life without parole for 25 years plus 11 months concurrent on the firearm charge.
On appeal Armstrong raised six issues: prosecutorial misconduct (multiple remarks in closing/rebuttal and alleged in limine violation), failure to instruct on reckless (unintentional) second-degree murder, alleged errors in voluntary manslaughter instruction form/definitions, juror misconduct (sleeping and hallway conversation), cumulative error, and district court jurisdiction to set restitution after sentencing.
The court found two isolated prosecutor statements exceeded permissible bounds but were harmless under Chapman; one alleged in-limine violation was not preserved on the record; the failure to give an unrequested reckless second-degree instruction was erroneous but not clearly reversible; voluntary manslaughter instruction and juror-misconduct rulings were upheld; restitution hearing held later was within jurisdiction as a functional continuance.

Issues

Issue	Plaintiff's Argument (Armstrong)	Defendant's Argument (State)	Held
Prosecutorial misconduct — jurors “already have an opinion”	Prosecutor told jurors they already had opinions, violating K.S.A. 22-3420(2) and prejudicing trial	Statement urged use of common sense and evaluating evidence; jury admonitions cure any ambiguity	Comment violated law (misconduct) but was isolated, not motivated by ill will, and harmless given admonitions and evidence; no reversal
Prosecutorial misconduct — “if you believe defendant he’s a free man / out of here”	Statements improperly overstated that belief in defendant’s testimony precluded convictions and appealed to community-protection sentiment	If jury believed Armstrong’s testimony it would negate aiding/abetting and possession elements — an accurate description of legal effect	Statements were proper in context; not misconduct
Prosecutorial misconduct — rebuttal comments implying Armstrong would lie if he could (personal opinion/speculation)	Prosecutor improperly vouched/speculated about what defendant would do absent evidence	Many remarks were fair inferences from numerous inconsistent sworn statements; one line (“if he could, he would”) was speculative and outside wide latitude	Error found as to that isolated comment but harmless in light of record and defendant’s credibility problems
Failure to instruct on unintentional but reckless 2nd-degree murder	Evidence supported lesser included unintentional-but-reckless 2nd-degree murder; omission was clearly erroneous	Although legally a lesser-included offense, the full record and inferences support the higher crimes; omission did not likely change the verdict	Instruction was legally and factually available (error) but not "clearly erroneous" — appellate court not firmly convinced jury would have reached a different verdict

Key Cases Cited

State v. Raskie, 293 Kan. 906 (discusses limits on prosecutor argument)
State v. Bridges, 297 Kan. 989 (framework for assessing prosecutorial misconduct and harmlessness)
Williams v. State, 295 Kan. 506 (standard for clear-error review of unrequested lesser-included instructions)
Plummer v. State, 295 Kan. 156 (lesser-included-instruction factual/legal analysis and sufficiency-analogous review)
Chapman v. California, 386 U.S. 18 (harmless-beyond-a-reasonable-doubt constitutional standard)
State v. Deal, 293 Kan. 872 (focus of intent inquiry for second-degree murder)
State v. Pabst, 268 Kan. 501 (prosecutor cannot vouch or repeatedly label parties as liars)
State v. Finley, 273 Kan. 237 (distinguishes permissible credibility argument from improper personal opinion)
State v. Kirby, 272 Kan. 1170 (treatment of inattentive juror; weight given to trial court’s response)
State v. Hall, 298 Kan. 978 (district court may bifurcate/continue sentencing to determine restitution amount)