State v. Tahah
302 Kan. 783
Kan.2015Background
- Defendant Christopher Tahah, a Dodge City police officer, was retried after this court reversed his first conviction; charged with felony murder and criminal discharge of a firearm at an occupied dwelling for the May 2007 killing of his ex-girlfriend Erin Jones.
- Tahah gave multiple inculpatory confessions (including a detailed videotaped Colorado confession) describing changing into dark clothes, taking a .270 rifle, waiting outside Jones’s bedroom, and the rifle discharging; at trial he recanted and testified the confessions were false.
- Jury was instructed on first-degree felony murder and, over post-remand developments, received instructions on second-degree reckless murder and involuntary manslaughter as lesser included offenses on the felony-murder count; jury convicted on felony murder and the firearm discharge charge.
- On appeal Tahah raised four main issues: (1) failure to give voluntary manslaughter and intentional second-degree murder lesser-included instructions; (2) prosecutorial misconduct in opening/closing statements; (3) judicial misconduct based on a preliminary juror-instruction warning about mistrial expense; and (4) constitutional challenge to an enhanced sentence based on prior convictions not proven to a jury.
- Court examined intervening statutory and legislative changes affecting availability of lesser-included instructions for felony murder (post-remand amendments and retroactivity), evaluated alleged prosecutorial errors (three targeted remarks), reviewed the preliminary jury warning under the clear-error standard, and rejected Tahah’s Sixth Amendment challenge to the sentencing enhancement.
Issues
| Issue | Tahah's Argument | State's Argument | Held |
|---|---|---|---|
| Lesser-included instructions for felony murder | District court should have given voluntary manslaughter and intentional second-degree murder instructions | Statute and legislative amendments eliminate lesser-included offenses for felony murder; instructions not legally appropriate | No error: under controlling precedent and subsequent retroactive statute, lesser-included instructions for felony murder are not legally appropriate |
| Prosecutorial misconduct (three remarks) | Prosecutor misstated law/facts in opening and closing ("going hunting," "way of thinking," "cannot have it both ways") | Comments were reasonable inferences from confession and evidence; any misstatement harmless | Two remarks permissible as reasonable inferences; "cannot have it both ways" misstated law but was harmless given overwhelming evidence |
| Judicial misconduct / preliminary juror instruction warning about mistrial expense | Court’s statement that mistrial is a "tremendous expense and inconvenience" and restarts entire trial was misleading and coercive (Salts) | Preliminary warning differs from Allen-type instruction; it properly discourages juror misconduct and is factually accurate in criminal context | No clear error: preliminary instruction aimed at preventing juror misconduct and was legally/factually appropriate (concurring opinion disagreed as to accuracy) |
| Enhanced sentence based on prior convictions not proven to jury | Sixth and Fourteenth Amendment violation for relying on prior convictions not alleged/decided by jury | Precedent (Ivory) permits such procedures | Claim rejected: controlling precedent upheld enhanced-sentence procedure |
Key Cases Cited
- State v. Tahah, 293 Kan. 267 (2011) (opinion reversing first trial for lack of lesser-included instructions)
- State v. Berry, 292 Kan. 493 (2011) (statutory interpretation governing lesser-included instructions in felony-murder cases)
- State v. Wells, 297 Kan. 741 (2013) (held post-enactment amendment not retroactive)
- State v. Todd, 299 Kan. 263 (2014) (upheld retroactive legislative amendment eliminating lesser-included offenses for felony murder against ex post facto challenge)
- State v. Salts, 288 Kan. 263 (2009) (Allen-type jury instruction language misstated and misleading regarding retrial burdens)
- State v. Ivory, 273 Kan. 44 (2002) (upholding imposition of enhanced sentence based on prior convictions without jury proof)