*1 85,976 No. Kansas, Pabst, Appellee, Appellant. Tod Alan (44 1230) denied_U.S__
cert filed Opinion 26, 2002. April R. the cause and on the Penny Moylan, brief for Topeka, argued appellant. cause, Stovall, S. assistant Maag, attorney general, argued Carla]. Jared him on with the brief for attorney general, appellee. of the court was delivered opinion by Six, We earlier reversed and remanded defendant Tod Alan J.: Pabst’s conviction for murder of his fian- first-degree premeditated cee. The remarks were so during closing arguments Pabst, that a new trial was See prejudicial required. (2000) (Pabst I). retrial, On Pabst was convicted of murder. The district again first-degree premeditated court a sentence of life with the imposed imprisonment pоssibility in 25 See K.S.A. 2001 22-3717. Pabst parole years. Supp. appeals his conviction and sentence. 22-3601(b)(l) (an
Our is under K.S.A. of a jurisdiction appeal court). conviction for an crime receives review this off-grid whether; (1) The issues are the district court erred by failing an additional instruction on the definition of provide premedita- tion, (2) reversal, the prosecutor’s argument requires closing murder conviction was supported first-degree premeditated evidence, (4) the erred district court sufficient admitting *2 evidence, and the district court his trial into from first testimony on the defi- an additional instruction to erred refusing provide intoxication. nition of voluntary and affirm. find no reversible error
We
DISCUSSION
I,
in
The State there “objection” by that his instruction. The State concludes failure to requested give This should be standard of review erroneous applied. clearly conclusion lacks merit. We have said: “It is well established that this court reviews a trial court’s an failure to instruction aby give neither erroneous standard where the requested clearly party instruction nor to its omission.” added.) objected (Emphasis Sperry, tire additional instruction. requested 56.04(b) the PIK Crim. 3d Jamison, expressly approved definition here. We “premeditation” recognized Saleem, with PIK opinion concurring expressed disagreement 56.04(b) Crim. 3d and our statement that the definition of pre- meditation is “to have over the matter beforehand.” 269 thought Kan. at 573. found that the PIK definition “adequately conveys means more than the concept premeditation’ something instantaneous, intentional act of another’s life.” Kan. at taking 573. The district court did err in the re- refusing provide *3 additional instruction quested regarding premeditation.
Prosecutor’s
Argument
Closing
that the
committed misconduct
prosecutоr
during
reversal
his
con-
conviction. This
closing argument, requiring
First,
tention lacks merit.
Pabst asserts that the
made
prosecutor
statements that did not
define
accurately
premeditation.
counsel
to the statements and was overruled.
objected
of the effect
aof
analysis
prosecutor’s alleged improper
First,
remarks
ais
we must
closing argument
two-step process.
decide whether the remarks were outside the considerable latitude
Second,
allowed
the evidence.
we
prosecutor
discussing
must decide whether the remarks
so
are
and
as to
gross
flagrant
the accused and
a fair trial. prejudice
jury against
deny
539,
529,
726,
cert.
997 P.2d
denied
Campbell,
939,
U.S. 832
Lumley,
(citing
).
Here, said: prosecutor know, “Now ladies аnd as we all science gentlemen, has evolved to the yet where we read can minds. We point don’t have machine where we can it plug is, in and we know what was in a mind. So say what we have to do person’s itself, and is look at the of the prosecutors jurors, circumstances crime surrounding that, at what surrounds the crime to to look at to look and the law allows for you exists. see if evidence factors, “Now, no amount time that’s to those there’s required. before we get no element in There’s interval that there’s time “You notice premeditation. it weeks. You have to think about for There’s no don’t that’s plan. required. hours, minutes, weeks, ten think it for days, don’t have to about “You the conscious over the matter beforehand. It’s It means to minutes. thought at the such matter can be act way looking only proved person. added.) circumstances.” (Emphasis law when he said misstated the asserts that prosecutor Pabst, “no of time that’s there was amount required.” According State v. Kingsley, Kan.
Patterson, (1988), are distinguishable Patterson, we found no error from this case. In both Kingsley is no the district court instructed the “[t]here spe- cific time element to establish Kingsley, required premeditation.” 771-72; Patterson, Kan. at 268. 252 Kan. at Kingsley, stated the law. that such an instruction noted correctly at 772. amount of use here “no
Pabst argues from time element re is different “no time specific required” amount of time re that the statement “no contends quired.” and, thus, we no time is reverse should means that required quired” His is not Pabst’s conviction. According reasoning persuasive. State, amount that no specified explaining prosecutor We find the State’s of time expla required does not distinction. the law nation a dubious clearly *4 Moncla, State v. a time require particular period 58, 72, 727 We find no reversible error 262 Kan. 936 P.2d here. Holmes, State v. are admоnished read
Prosecutors
delib-
(2001),
found the
Pabst also contends committed prosecutor facts not in evidence. We reversible Generally, by stating disagree. a mis- error cannot be predicated complaint prosecutorial upon conduct no ob- during closing arguments contemporaneous P.2d is jection lodged. Finley, (2000). statements here. The objection prosecutor’s a to fair did not rise to the level either Pabst’s violating right See trial or the Fourteenth Amendment to due right process. 349, 362-63, Diggs, twice said that Pabst “am- complains prosecutor wide latitude in bushed” Harkins. While is prosecution in a criminal language presentation closing arguments trial, in evidence. to confine remarks to matters counsel required Hooker, issue dеcide was whether the
Pabst notes that an or accidental. He was intentional prose- shooting cutor’s were because went comments they directly prejudicial out, the a As the word “ambush” connotes issue. State points sudden attack. Such an intentional act is consistent with evi- murder. dence and the State’s theory premeditated first-degree this were nоt We close comments por- improper. Prosecutors, PIK tion of our with caveat. discussing opinion are to 56.04(b) Crim. 3d with jury during closing argument, Pabst I: follow the teaching and a of the “A servant of law people. prosecutor representative is as whose represents sovereignty obligation govern impartially
prosecutor *6 all; interest, therefore, as its at and whose in а obligation compelling govern case, criminal is not that it win a that shall but shall be done.” prosecution justice of the Evidence
Sufficiency
Next, Pabst
that his conviction was not
suf-
argues
supported
ficient evidence of
premeditation. Again,
disagree.
ques-
whether,
evidence,
tion is
a
of all
after
review
the
in
viewed
the
most
to the
favorable
we are convinced that a
light
prosecution,
rational factfinder could
found
a
Pabst
reason-
guilty beyond
Evans,
doubt.
able
See State
P.3d
Pabst contends
there was no direct evidence of premedi-
His
tation.
raised
Pabst I. 268 Kan.
argument
rejected
at 512.
he
the
contends that
evidence
only presented
intent,
of
a
Unless
communicates his or
person
life,
hеr reasons for
another’s
must be
taking
premeditation
proved
circumstantial evidence. Premeditation
be inferred from
may
circumstances,
(1)
various
the nature of the
including:
weapon
(2)
used;
(3)
the
lack
the defendant’s conduct be-
provocation;
(4)
fore and after the
threats and declarations
the
de-
killing;
occurrence;
fendant before аnd
or
during
dealing
lethal blows
after
deceased was felled and rendered helpless.
White,
Premed-
cannot
alone,
itation
be inferred from the use of a deadly weapon
but it
be inferred where other circumstances also exist.
may
Doyle,
Pabst notes that the State evidence that it was ana- presented for Harkins to have had her hands on tomicаlly impossible gun she when was shot. The State also evidence that presented gun was at least 1 foot from Harkins when she was and that shot away she was seated Pabst contends that this evi- during shooting. dence toward the element of intent. We merely goes disagree. also
Pabst that there was no evidence of a or scheme argues plan to kill Harkins becausе he had lunched with her earlier that day and “was in a mood when he home.” He seems great got ignore the fact that does not time frame. require specific this record on 572-73. See Although appeal Jamison, scene, crime not include did testimony sug- photographs couch with her was found Harkins sitting legs gested no visible There were crossed. struggle. Viewing signs to the there was most favorable evidence prosecution, light to have for a rational factfinder found sufficient evidence murder. of premeditated first-degree guilty Pabst’s Prior Trial Testimony at his trial. that the district did second not testify I erred in his Pabst court testimony. admitting disagree. sound or of evidence lies within the discretion admission exclusion review, On we examine whether of the distriсt court. appellate *7 Hooker, 271 its State v. Kan. at district court abused discretion. a defendant at We have held that voluntary testimony given an to this trial is admissible at retrial. There is exception prior the introduction rule when the was testimony compelled by prior Willcox, 310, 313- obtained evidence. illegally not here. The does exception apрly not from his first trial was Pabst contends testimony to that he not needed reasons “would voluntarily given. had admitted his former wife’s the district court testimony. testify” His contention is not persuasive.
First, that his trial he not in the district court did prior argue his Fifth Amendment or that involuntary right testimony Where self-incrimination was violated. constitutional against are are for the not raised first time they prop- аppeal, grounds 37, 39, Mason, before us. State erly in State v. (1999). The rule our recognized exceptions general 30-31, do not apply Conley, here.
Second, to the rule case does not fall within the this exception in a retrial. There illegally testimony admitting prior See, in the first trial. the State obtained evidence introduced by States, Ed. 2d 392 U.S. L. Harrison v. United e.g., 88 S. an Ct. (establishing еxception defendant’s is as result of introduction of il- testimony compelled evidence). obtained legally
Third, retrial, in this withdrew Pabst his motion to allow the of his former wife. out to the district testimony pointed court after the former wife that “will she interviewing testify to what defense first this trial first time proffered different, around .... So the or the actual proffer testimony different to be from the did not going proffer.” Dauge testify the second trial. We find no abuse discretion in allowing to be into admitted evidence. prior testimony Intoxication
Voluntary court (1996 district tire PIK Crim. 3d 54.12-A gave Supp.) intoxication instruction to the voluntary jury: intoxication be a defense “Voluntary may first- premeditated charge murder, where the evidence indicates that degree suсh intoxication impaired Defendant’s mental faculties to the extent that he was incapable forming intent to commit intentional murder with necessary premeditation.” Pabst that the district court erred an by refusing give additional instruction on the definition of intoxication. voluntary Thus, such an instruction. our standard of review requested is whether the instruction without the additional requеsted stated the law as to the facts language properly fairly applied of the case and whether the instruction could have given reasonably Carr, misled the See State v. 963 P.2d jury. instruction with lan- requested following supplemental *8 guage: intoxication be a to the defense of “Voluntary may first- premeditated charge murder, where the evidence indicates degree such intoxication a de- impaired fendant’s faculties mental to the extent that he was of incapable forming or other intent state mind to commit
necessary
intentional murder with pre-
of
added.)
meditation.” (Emphasis
here,
PIK
3d
Crim.
54.12-A the instruction not
involves
given
intoxication and “state of mind.” Pabst
that Kansas
voluntary
argues
law
the additional
of
“state mind”
to bе
requires
language
given
21-3208(2)
He notes that K.S.A.
jury.
provides:
is
less criminal
in a state of
intoxication
not
act committed while
voluntary
“An
thereof,
intent or other state mind is necessary
but when
reason
particular
of
crime,
into
the fact of intoxication
be taken
constitute a
element to
may
particular
added.)
intent or
mind.”
in
such
state
consideration
determining
(Emрhasis
PIK Crim 3d 54.12-A
“Where a defend-
The Comment to
says:
lack of
on
intoxication
show
ant relies
evidence
voluntary
mind,
intoxication
the instruction on
state of
voluntary
required
mind.”
include reference to
state of
should
Ludlow,
P.2d 1144
256 Kan.
Pabst advances State
Ludlow,
to his
the issue
to lend credence
argument.
54.12-A
the instruction’s omission of
PIK Crim. 3d
involved
21-3208(2).
in
Ludlow
other state of mind”
of K.S.A.
“or
light
state mind.” Sеe
was an “other
complained
premeditation
not
that the PIK instruction does
144-45.
agreed
We conclude that the instruction could reasonably led the jury. I with the result reached concur concurring: Allegrucci, J. but continue to with the disagree approval majority majority’s I do so on the instruction based
of the
Saleem,
my
reasoning expressed
concurring opinion
in the
J., joins
concurring opinion.
foregoing
Lockett,
Affirmed.
notes
cert denied
(2001),
L.
Ed. 2d 550
we said: “Pre-
meditation is the time of reflection or deliberation. Premeditation
contrived,
does
mean that an act is
or
nеcessarily
planned,
Scott,
schemed beforehand.”
we found
that
defendant had
his hand on the victim’s neck until she became unconscious. We
concluded that Scott’s continued
over a
application
pressure
of time was sufficient for a
to find that victim’s death
period
jury
at
Kan.
premeditated.
In Doyle,
discussed the
statement
that
be
can
prosecutor’s
“[sjomething
pre
meditated as
as it
soon
This was a misstatement of the
happens.”
Moncla,
law.
See
1165. We
that in
noted
we disap
instruction that
included
proved
juiy
phrase
arise in an instant.”
the error was not
reversible
“may
Monda because the record contained abundant evidence of pre
deliberation,
meditation and the
was not misled
jury
Moncla,
instruction.