State v. Berry
254 P.3d 1276
| Kan. | 2011Background
- Berry was convicted of first-degree felony murder based on possession of cocaine as the underlying inherently dangerous felony, along with related charges.
- The underlying event began with a traffic stop 1:45 a.m. during which Berry fled at high speed, leading to a fatal collision that killed Vicki Brown.
- Cocaine was found on Berry after his apprehension; a second bag of cocaine was discovered in a field near Mendoza's house and a coat and footprints traced the flight path.
- Berry sought dismissal of the felony-murder charge pretrial on res gestae and causation grounds; the motion was denied.
- Kansas Supreme Court abandoned the judicially created felony-murder instruction rule and held that K.S.A. 22-3414(3) governs lesser included offense instructions in felony-murder cases.
- The court remanded for a new trial on the felony-murder charge and found the remaining issues moot, though discussed causation instruction and prosecutorial argument for potential retrial guidance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of causation between possession and death | Berry contends no direct causal link supported felony murder. | State maintains res gestae and causal connection exist. | Sufficiency upheld; causal link found under res gestae and foreseeability. |
| Need for lesser included offenses in felony-murder | Under 22-3414(3), there is some evidence for lesser offenses. | Felony-murder rule should limit such instructions. | Abandon felony-murder instruction rule; apply 22-3414(3) to felony-murder cases. |
| Application of 22-3414(3) to felony murder | Statute should govern; lesser offenses may be warranted. | Rule-based approach should apply instead of statute. | 22-3414(3) governs; instructions for second-degree reckless murder, involuntary manslaughter, and vehicular homicide should be given on remand. |
| Causation instruction sufficiency | Additional causation instruction was necessary. | Existing PIK instruction adequately covers causation. | Instruction on causation not required; remand may address potential guidance. |
| Prosecutorial misconduct in closing | Closing misstated causation elements for felony murder. | Any error is moot on remand; arguments were within latitude. | Remand moot point; potential remedy on retrial. |
Key Cases Cited
- State v. Beach, 275 Kan. 603 (2003) (defines res gestae and direct causal connection in felony murder)
- State v. Jackson, 280 Kan. 541 (2005) (felony-murder elements and causation discussion in res gestae context)
- State v. Masqua, 210 Kan. 419 (1972) (emergence of current lesser-included-offense rationale in felony murder)
- State v. Reed, 214 Kan. 562 (1974) (early treatment allowing exceptions to lesser included offenses in felony murder)
- Bradford v. State, 219 Kan. 336 (1976) (conflicting evidence doctrine for lesser included offenses in felony murder)
- Rueckert, 221 Kan. 727 (1977) (Bradford-based analysis; evolving felony-murder instruction approach)
- Sullivan & Sullivan, 224 Kan. 110 (1978) (reaffirms balancing of evidence and lesser-included considerations)
- State v. Jones, 287 Kan. 547 (2008) (court's discussion of the former felony-murder instruction rule)
- State v. Hoffman, 288 Kan. 100 (2009) (weak/inconclusive standard for underlying felony in the felony-murder context)
- State v. Gunby, 282 Kan. 39 (2006) (evidence governing by statute 60-455 regarding other crimes and civil wrongs)