State v. Killings, 301 Kan. 214

Background

Killings was convicted of premeditated first-degree murder after shooting Jackson in McCray's apartment; the State sought a hard 50 life sentence and lifetime postrelease supervision; Killings challenged jury instructions, prosecutorial conduct, and sentencing scheme; the district court imposed hard 50 life and lifetime postrelease supervision; there were multiple eyewitness identifications and DNA evidence linking Killings to the crime; the court later vacated the hard 50 sentence and remanded for resentencing; the court remanded on lifetime postrelease supervision and discussed retroactivity of amended hard 50 statute.
Evidence showed premeditation including timing, taunting, and revenge motive; five eyewitnesses identified Killings as the shooter; DNA on a magazine and bullets matched Killings; Killings admitted to being at the mall and later denying involvement.
The district court instructed on premeditation and Killings argued for lesser-included offenses; extensive circumstantial evidence supported premeditation beyond reasonable doubt.
The opinion analyzes instructional error, prosecutorial misconduct, right to be present at trial, cumulative error, and sentencing issues, concluding harmless error for the instruction and procedural/constitutional concerns leading to remand for resentencing.
The court held: (a) denial of lesser-included offense instructions was harmless; (b) one prosecutorial remark was improper but not reversible misconduct; (c) no reversible error on juror-question interaction; (d) cumulative error did not warrant reversal; (e) hard 50 sentence vacated and remanded for resentencing; (f) lifetime postrelease supervision invalid for off-grid life sentence and should be lifetime parole if indeterminate life is imposed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Second-degree murder lesser offense instruction	Killings urged instruction on second-degree intentional murder.	State argues instruction warranted by 22-3414(3) and evidence.	Harmless error; overwhelming premeditation evidence supports conviction.
Second-degree reckless murder instruction	Killings seeks instruction based on Stewart's testimony.	State contends testimony speculative; evidence shows premeditation.	Not factually appropriate; no reversible error.
Prosecutorial misconduct in closing	Suggests prejudice from comments about jury trial rights and missing evidence.	Arguments within wide latitude; defense weaknesses addressed.	One improper remark; not reversible in light of overwhelming evidence.
Right to be present during juror question	Judge/juror conference occurred without Killings' presence.	Not a reversible conference under the facts.	Brief exchange did not violate presence rights.
Hard 50 life sentence and postrelease supervision	Statutory scheme violated Sixth Amendment per Alleyne; retroactivity issues.	Requests affirmed sentencing under amended statute.	Hard 50 vacated; remanded for resentencing; lifetime postrelease supervision improper for off-grid life sentence; parole should be lifetime parole if indeterminate life imposed.

Key Cases Cited

State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011) (premeditation circumstantial evidence framework; multiple factors may apply)
State v. Deal, 293 Kan. 872, 269 P.3d 1282 (2012) (second-degree murder not appropriate where intent established by trial record)
State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004) (recklessness evidence in lesser-included-offense analysis)
State v. Tosh, 278 Kan. 83, 91 P.3d 1204 (2004) (prosecutor’s closing remarks cannot impermissibly shift burden or invite outside evidence)
State v. Snow, 282 Kan. 323, 144 P.3d 729 (2006) (prosecutor improper when disparaging defendant’s jury-trial rights)