State v. Parker, 344 P.3d 363

Background

On Jan. 1, 2012, Daniel Parker fired an AR-15 at a motorcycle club clubhouse; one shot killed Frederick Beverly. Parker admitted shooting but denied intent to hit anyone.
Parker was charged with felony murder (based on criminal discharge of a firearm at an occupied building) and criminal discharge of a firearm.
The district court instructed the jury on the charged crimes and, as lesser included offenses of felony murder, second-degree unintentional murder and involuntary manslaughter; the court also instructed jurors that their verdict must be unanimous.
In closing, the prosecutor twice told jurors they should consider lesser included offenses only if they first found Parker not guilty of first-degree (felony) murder — wording that suggested unanimous acquittal of the greater charge was required before considering lessers.
The jury convicted Parker of felony murder and criminal discharge of a firearm; Parker appealed arguing prosecutorial misconduct based on the misstated instruction about lesser included offenses.
The Kansas Supreme Court concluded the prosecutor misstated the law but found the error harmless and affirmed the convictions and sentence.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor misstated law on when jury may consider lesser included offenses	Prosecutor argued jurors should consider lessers only after they find defendant not guilty of the greater offense (i.e., unanimous acquittal required)	Parker argued this misstated the law and could mislead jurors into thinking unanimous acquittal of the greater charge was a prerequisite	Court held prosecutor's statements were an incorrect statement of law and therefore prosecutorial misconduct
Whether the misconduct was gross, flagrant, or motivated by ill will	State contended statements were isolated and prosecutor also correctly recited proper law, so no gross misconduct	Parker argued repeated incorrect statements could have confused jurors and denied a fair trial	Court held statements were not gross and flagrant nor motivated by ill will because correct instructions were also given and the misstatements were not emphasized repeatedly
Whether the error was prejudicial (harmlessness)	State argued overwhelming evidence of felony murder and correct legal instructions rendered the misstatement harmless beyond a reasonable doubt	Parker argued the misstatement could have affected deliberations and verdict on lessers	Court held error was harmless: evidence of felony murder was overwhelming and correct statements were also given; no reasonable possibility the misstatement affected verdict
Whether jury should have been instructed on lesser included offenses of felony murder at all	State noted 2013 amendment eliminated lesser included offenses of felony murder and applied retroactively	Parker relied on the lower-court instructions and argued jury consideration of lessers was proper	Court noted the 2013 statutory change meant Parker was not legally entitled to lesser-offense instructions, reinforcing harmlessness of prosecutor's comments; convictions affirmed

Key Cases Cited

State v. Trujillo, 225 Kan. 320 (1979) (trial courts should sequence lesser included offense instructions by descending severity to promote orderly consideration)
State v. Korbel, 231 Kan. 657 (1982) ("if you cannot agree" language prefacing lesser-offense instructions does not coerce jurors or require unanimous acquittal before considering lessers)
State v. Carter, 284 Kan. 312 (2007) (approving instructions that direct jurors to consider lessers only if they do not agree on the greater charge)
State v. Hurt, 278 Kan. 676 (2004) (prosecutor misstates law when arguing all jurors must agree there is reasonable doubt on the greater charge before considering a lesser)
State v. Jones, 298 Kan. 324 (2013) (prosecutor misstated law by implying each juror had to reject an element before lessers could be considered)
State v. Todd, 299 Kan. 263 (2013) (2013 amendment removing lesser included offenses for felony murder applies retroactively)