427 P.3d 865
Kan.2018Background
- On May 24–25, 2014, Tiffany Davenport-Ray was fatally shot and Melvin Ray was wounded after a drive-by shooting between a Charger (victims) and an SUV; Lowery was arrested near the wrecked SUV and admitted driving it but denied shooting.
- Evidence included shell casings, a .45 firearm recovered from the SUV (which could not be forensically linked to the casings), latex gloves with DNA mixtures, phone data tying Lowery’s phone to a Samsung phone found in the SUV, and physical/forensic evidence placing items connected to Lowery in the SUV.
- Lowery was convicted by a jury of premeditated first-degree murder, attempted premeditated first-degree murder, criminal discharge of a firearm at an occupied dwelling, and drug offenses; he received a hard 25–life plus a consecutive 620-month sentence.
- On appeal Lowery raised multiple claims: prosecutorial error (including improper analogies, golden rule argument, misstated DNA probabilities, and limine violations), denial of right to be present at a motion/immunity hearing, instructional error on aiding-and-abetting (invited error claim), voluntariness of post-arrest statements, redaction failures in his recorded statement, hearsay/scope-of-cross issues, and sufficiency of the evidence.
- The Kansas Supreme Court found some prosecutorial and trial-court errors (golden-rule argument; misstatements of DNA statistics; limine violation re: witness intimidation; failure to redact sentencing/law explanations and some prison-history implications), but held each error harmless beyond a reasonable doubt and affirmed the convictions.
Issues
| Issue | Lowery's Argument (Plaintiff) | State's Argument (Defendant) | Held |
|---|---|---|---|
| Prosecutorial conduct in closings (analogies, golden-rule, DNA probabilities, limine violations) | Prosecutor used forbidden puzzle/"shading" analogies, made golden-rule appeals, misstated DNA statistics, and argued facts contrary to limine rulings — prejudicial misconduct requiring reversal | Many arguments fell within permissible inference-making; analogies did not define reasonable doubt; misstatements were harmless in context; defense often failed to object | Court found golden-rule argument and DNA misstatements and one limine-based inference erroneous but concluded errors were harmless beyond a reasonable doubt and did not warrant reversal |
| Preservation / contemporaneous objection to limine violations and evidentiary questions | Failure to object should be excused because limine ruling was entered without Lowery present; trial evidence violated orders and prejudiced defendant | K.S.A. 60-404 requires contemporaneous, specific objections; King and related caselaw preclude circumventing that rule by recharacterizing as prosecutorial error | Court held many evidentiary complaints waived for lack of contemporaneous objection; absence at the ex parte limine hearing did not excuse failure to object at trial |
| Right to be present at midtrial motion/immunity hearing | Lowery argued statutory and constitutional right to be present was violated when court ruled on motion in limine and granted immunity to a witness outside his presence | State argued immunity proceedings and some pretrial matters need not be attended by defendant; any absence was harmless | Court held K.S.A. 22-3208(7) gives a statutory right to be present and the hearing should have included Lowery, but the error was harmless (no prejudice) given lack of preserved objection and the evidence record |
| Aiding-and-abetting jury instruction (defendant proposed instruction; invited error) | Instruction (PIK) improperly permitted premeditation to be inferred from foreseeability; defendant challenged on appeal despite having proposed it | State invoked invited-error doctrine because Lowery proposed/accepted the instruction | Court applied invited-error doctrine and refused to review instruction claim; invited error bars relief absent showing structural constitutional defect (not made) |
| Voluntariness of post-arrest statements / Miranda issues | Statements involuntary due to incomplete Miranda admonition (no explicit right to stop questioning), lengthy custody after crash, head injury, fatigue, and coercive interrogation tactics | Waiver can be implicit; totality of circumstances supports voluntariness; omissions do not mandate suppression | Court affirmed denial of suppression: under the totality of circumstances statements were voluntary; Miranda omissions and implicit waiver did not render confession involuntary |
| Failure to redact video-recorded statement (Elnicki issues) | Law-enforcement commentary in recorded interview improperly informed jury of felony-murder law, possible 50-year exposure, and implied defendant’s criminal history; should have been redacted | Court and State argued some statements were relevant to voluntariness and investigation; jury instructions cure prejudice; many redaction claims not preserved | Court found refusal to redact sentencing/law-explanation and some implied-prior-conduct remarks erroneous but harmless under statutory harmless-error review given jury instructions and other evidence |
| Hearsay / scope of cross (ownership of Samsung phone) | Detective’s testimony about another detective’s identification of phone owner was inadmissible hearsay and went beyond scope | State argued defense opened the topic on direct; testimony about DNA comparisons and who was targeted was relevant and harmless; corroborating phone-content evidence existed | Court held cross on phone/search-warrant subject was within scope and any hearsay error harmless due to corroborating Samsung-phone content introduced without objection |
| Sufficiency of evidence for premeditated murder and related counts | Evidence largely circumstantial and hinged on contested location/phone data and inconclusive weapon links — insufficient to prove premeditation/aiding-and-abetting | Jury reasonably could infer premeditation from planning indicators (rental SUV, phone contacts, gloves, multiple angles of shooting, passengers’ DNA links) and other circumstantial proof | Viewing the record in the light most favorable to the State, court held the evidence was sufficient to support convictions |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (constitutional harmless-error test employed for prosecutorial error)
- State v. Sherman, 305 Kan. 88 (refined two-step prosecutorial-error review and harmlessness analysis)
- State v. Crawford, 300 Kan. 740 (warnings about puzzle/Wheel-of-Fortune analogies in argument)
- State v. King, 288 Kan. 333 (contemporaneous-objection requirement under K.S.A. 60-404; cannot recast evidentiary error as prosecutorial error to avoid preservation)
- State v. Stevenson, 297 Kan. 49 (permissible analogies limited; guidance on when analogy may cross line)
- State v. Knox, 301 Kan. 671 (prosecutor should not vouch for State witnesses; limits on commenting on witness credibility)
- Jackson v. Denno, 378 U.S. 368 (standard for voluntariness hearings/admissibility of statements)
- North Carolina v. Butler, 441 U.S. 369 (implicit waiver of Miranda may be found from course of conduct)
- State v. Price, 247 Kan. 100 (Miranda-related deficiencies can be a factor in voluntariness analysis)
- State v. Yardley, 267 Kan. 37 (jurors should not consider sentencing/ultimate disposition when determining guilt)