State v. Carvin ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,448
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TYRONE J. CARVIN,
Appellant.
MEMORANDUM OPINION
Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed April 9, 2021.
Affirmed.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., MALONE, J., and MCANANY, S.J.
PER CURIAM: Tyrone J. Carvin appeals his convictions of voluntary
manslaughter, aggravated battery, and aggravated assault. Carvin challenges the
sufficiency of the evidence supporting his voluntary manslaughter conviction and the
propriety of instructing the jury on an aiding and abetting theory of liability. He also
argues that allowing an unavailable witness' preliminary hearing testimony to be read into
the record at trial violated his confrontation rights under the Kansas Constitution, the
district court erred by denying his motion for mistrial, the prosecutor committed
reversible error during closing argument, and cumulative error merits reversal of his
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convictions. For the reasons explained in this opinion, we reject Carvin's claims and
affirm the district court's judgment.
FACTUAL AND PROCEDURAL BACKGROUND
This case stems from a shooting at the Motel 6 in Lawrence that involved two
groups of men. Cameron Hooks, Laroyce Thomas, and Dominick Frye suffered gunshot
wounds while their friends Tanner Marlowe and Mathdaniel Squirrel avoided being shot.
The identities of the other four men in the motel room were originally unknown. The
Lawrence Police Department (LPD) undertook an extensive investigation and the State
ultimately prosecuted three individuals for crimes related to the shooting: Carvin, Shawn
Smith, and Ramone Singleton. The fourth man in the second group was later identified as
SirEric Singleton (SirEric), Ramone's brother.
Carvin and Squirrel first met in 2016 in a juvenile correction center, and they
remained friends and stayed in touch after their release. In July or August 2017, Squirrel
brought Marlowe and Frye to Carvin's home in Kansas City, Kansas, and they all sat on
the front porch and talked for about 30 minutes. Carvin had a friend there as well; he later
stated he could not remember who it was, but Marlowe later identified that friend as
Singleton. Frye showed Carvin a silver and black 9 mm Ruger he was trying to sell.
According to Carvin, he agreed to buy it and they exchanged phone numbers.
Carvin later said that he went to Topeka and met with Frye to buy the gun, but
Frye did not have the gun when Carvin arrived. Frye, on the other hand, said that Carvin
texted him after they first met about buying the gun, but Frye never replied to the texts. In
any event, that encounter was friendly.
On September 2, 2017, Frye, Squirrel, and Marlowe drove to Kansas City and
went shopping. They then drove to Lawrence, where they planned to go to bars and a
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strip club. Frye rented a room on the third floor at the Motel 6 in Lawrence, which is near
Interstate 70. At about 7 or 8 p.m., they drove to Walmart, where they did some more
shopping and met up with Thomas and Hooks. After they left Walmart, the men stopped
at a liquor store, then headed back to the Motel 6.
Carvin later testified that at 9 or 10 p.m., he realized he had a Snapchat message
from Squirrel inviting him to a strip club and saying Squirrel had a hotel room. Squirrel
later testified that he had posted on Snapchat that he was in Lawrence and Carvin asked if
he could join them. Carvin said he told Squirrel he was bringing his cousin, but Squirrel
later said he did not know Carvin was bringing anyone with him. Either way, Carvin,
Singleton, Smith, and SirEric headed to the motel.
Carvin's version of events
Carvin testified that when he, Singleton, Smith, and SirEric arrived at the Motel 6,
Squirrel met them in the motel parking lot. Carvin introduced Squirrel to the others and
they went inside. Once in the room, Carvin recognized Marlowe and Frye but he did not
know Thomas or Hooks and had not anticipated they would be there. The gun Frye had
been trying to sell him was sitting on the dresser in front of the television, and Carvin saw
that Thomas had a black gun on his waist. Carvin saw a third gun, a black semiautomatic
.380, sitting on the table. At one point, Frye asked if Carvin still wanted to buy his gun
and when Carvin said he did, Frye said he would sell it to him at the end of the night.
Frye passed the gun around the room, compared it with Thomas' gun, which Thomas had
taken out, and then set it on the side of the bed. Carvin also saw a fourth gun in the room,
near Marlowe, but Marlowe denied that it was his when Carvin asked him.
Thomas and Squirrel ordered pizza and then the men all drank, smoked, ate pizza,
and watched a game on television for about 20 to 30 minutes. Carvin sat on the corner of
the bed closest to the bathroom with Marlowe, Smith, and SirEric. Frye and Singleton sat
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on the other bed and Thomas and Hooks were at the table. Carvin saw Squirrel talking
with Hooks and Thomas, then Squirrel said he needed to get something out of the car and
left the room. Right after that, Carvin heard someone get up and say, "'Run that shit.'"
Singleton stood up and, when Carvin peeked around Singleton, he saw Hooks and
Thomas standing up and pointing guns at them.
Carvin saw Singleton take off his necklace and begin to reach into his pocket,
perhaps to give up his money. Carvin took off his watch to give to Hooks and Thomas as
if it was a robbery. He heard either Hooks or Thomas say, "'Don't do it, don't do it, man.'"
Then Carvin felt a sharp pain in his arm and saw Singleton run past him and out of the
room, so he picked up a nearby gun and started shooting at Hooks and Thomas. He
believed he shot four or five times, but he heard no gunshot, including his own, because
his ears were ringing. Carvin was unsure whether any of his friends fired a gun, but he
believed at the time that none of them had brought a gun to the room.
As he ran out of the room, holding his phone and watch and still carrying the gun,
Carvin tripped and fell, but he continued to fire the gun behind him as he left the room.
Carvin believed that he was the only person shooting at that time. He left the motel
through a back door and fell again as he crossed the parking lot, dropping his watch.
Carvin tried to drop the gun as well, but he was physically unable to loosen his grip on it.
When Carvin joined Smith, Singleton, and SirEric in the car, Singleton drove them away.
Frye's version of events
According to Frye, after he, Squirrel, Marlowe, Hooks, and Thomas returned from
the liquor store, Squirrel said he had invited a friend from Kansas City to come join them.
Frye ordered pizza and when Squirrel went down to get the pizza, he returned with four
men, three of whom Frye later identified as Carvin, Singleton, and Smith. Frye had a gun
in a waistband holster under his shirt and he believed Thomas had a gun as well. Frye
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noticed that none of the men from Kansas City seemed "dressed to go out"; one of them
was wearing Nike slide sandals. The men from Kansas City were quiet and looked
around the room as they all ate pizza, drank liquor, smoked marijuana, and talked.
According to Frye, just before the shooting, he was lying on the bed farthest from
the door and closest to the window and Marlowe was sitting beside him. Hooks was
walking to the refrigerator near the window. Thomas was at the refrigerator and Squirrel
was pacing back and forth in front of both beds. Carvin, Smith, Singleton, and the fourth
individual were sitting on the other bed in the room. Frye leaned over to pass a liquor
bottle and he saw Carvin, Smith, Singleton, and the fourth individual "hop up quick. And
there was no words said, and then gunfire." All four men from the Kansas City group had
guns and "[t]wo of them was standing up on the bed, the other two was spraying."
Although Frye saw Carvin, Smith, Singleton, and the fourth individual pull out
guns and he saw "a few different flashes, so [he knew] a few different guns started going
off all at once," he could not say exactly who fired. But according to Frye, neither he nor
Thomas fired back. Instead, Frye rolled over on the bed, covered his head, and prayed.
Before he did, he saw Marlowe fall off the bed and get behind and partially underneath it
and he saw Hooks and Thomas "trying to duck." Squirrel was no longer in the room. Frye
heard one of the men from the Kansas City group repeat the word "'go,'" and he heard the
door to the room close, so he got up and locked the door. He heard Marlowe call 911 and
saw Hooks "coughing up chunks of blood." Although he at first denied it to police, Frye
threw his pistol out of the window. He also moved Hooks onto one of the beds.
Marlowe's version of events
Marlowe's version of events generally aligned with Frye's. Although he had met
Carvin and Singleton before in Kansas City, he did not know their names when he saw
them again on the night of the shooting. Marlowe testified at trial that everyone was in
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the motel room "just hanging out" when the four men from Kansas City stood up and
someone—he believed but was "[n]ot exactly sure" that it was one of the men from
Kansas City—said, "'Run it. Run it,'" which Marlowe testified means "'give us all your
shit.'" In various statements to police officers and in his later trial testimony, however,
Marlowe said that he also heard someone say, "'fuck you'" and that he remembered
nothing being said before the shooting.
When the shooting began, Marlowe dove off the bed onto the floor. Like Frye,
Marlowe was not sure who had fired, but he believed at least most of the shots came from
the group of men from Kansas City. But Marlowe conceded Thomas might have fired a
gun although Marlowe did not see him do so. Marlowe did not have a gun and he did not
know whether Hooks, Frye, or Squirrel did, but he knew that Thomas was armed.
When the shooting stopped, Marlowe stood up and the men from Kansas City
were gone, as was Squirrel. Thomas was on the floor by the table and Hooks and Frye
were each on one of the beds. Although he at first lied to police about it, Marlowe
eventually admitted that he then threw some marijuana out the window. He also saw Frye
throw a gun out of the same window.
Squirrel's version of events
Squirrel met Carvin and his friends in the motel parking lot when they arrived, but
he later testified that Carvin did not introduce his three companions and he had never met
them before. Even so, the atmosphere was friendly, and everyone sat around the room,
eating pizza, drinking, and smoking marijuana. Squirrel did not have a gun and he did not
know whether Thomas, Marlowe, or Hooks had one. Squirrel knew that Frye had a gun,
which he had placed on the table in the motel room. According to Squirrel, everyone's
money and belongings were "just sitting out"; he compared it to being at home and taking
everything out of your pockets to relax.
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As they finished eating, Squirrel thought they were going to a nearby strip club, so
he asked Frye, "'Are you ready?'" and Frye replied, "'Yes.'" Squirrel was going to wash
his face at the sink near the door to the bathroom. Frye and Marlowe were on the bed in
the corner, and Hooks and Thomas were near the window. One of the men from Kansas
City came toward Squirrel with a gun and someone said, "'Give me everything' or 'Run
everything,'" but Squirrel did not know who spoke or whether it was one or two people.
He only knew it was not Hooks' voice, Frye's voice, Thomas' voice, or Marlowe's voice,
and it was not the man pointing a gun at him. Squirrel heard a gunshot, so he ducked,
swatted away the gun pointed at him, and ran out of the motel room. Squirrel was not
shot, and he eventually made his way to the ground floor and out of the motel.
Police investigation and arrests
Just after 11:30 p.m., Marlowe called 911 and reported that three people had been
shot in room 308 of the Motel 6. When asked who had shot his friends, Marlowe told the
dispatcher that he did not know their names, but they knew a friend of his. Another male
who did not identify himself also called 911 and reported that he was at Motel 6 in
Lawrence and had been shot. That caller repeatedly stated that he did not know who had
shot him and, at about 2 1/2 minutes into the call, the caller stopped responding to the
dispatcher's questions and the dispatcher ended the call.
Many officers and detectives from the LPD responded to the motel. Officers found
Thomas lying on the floor in the entryway being tended to by a woman—another guest at
the motel—who had put a tourniquet on a gunshot wound to his leg. Marlowe, who was
standing near the room's window talking on the phone with the 911 dispatcher, said he
was not hurt. Hooks and Frye were lying on the beds in the room, and the responding
officers began applying pressure to their gunshot wounds. Frye had suffered four gunshot
wounds: one on each of his legs, one near his spine, and one in his left buttock. Two
bullets remained in his body, one in his back and one in his buttock. Still, Frye gave
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physical descriptions of men who had come from Kansas City to party with them whom
Frye said had suddenly begun shooting. Frye also said that the men were wearing dark
clothing and were driving a dark-colored Grand Prix. Frye said he had met them before at
parties, but he did not know their names.
Hooks had been shot five times; each bullet had entered and exited his body. One
bullet entered Hooks' left lower back, passed above his left kidney, went through his liver
and diaphragm, and exited through his chest wall below his right nipple. Another bullet
entered the back of Hooks' left forearm and exited through the front of his forearm. A
third and a fourth bullet entered the left side of Hooks' back a bit above his waistline and
exited through his abdominal wall. The fifth bullet entered the outside of Hooks' left
thigh and exited the inside of his left thigh. Hooks, who was in and out of consciousness,
also told police he did not know who the shooters were or why they had shot him.
When a detective asked Thomas who had shot him, Thomas said a "black male,"
but he did not know the man's name. Detective Kimberlee Nicholson, who would become
the lead detective for the case, also asked each man who had been shooting. Thomas,
Frye, and Hooks each said they did not know; Marlowe said it was four black men from
Kansas City who were headed back to Kansas City.
Meanwhile, as they were driving down the highway away from Lawrence,
Singleton helped Carvin loosen his grip on the gun he had fired and, at Carvin's direction,
Singleton threw the gun out the window. SirEric and Singleton each threw their own guns
out the window as well. According to Carvin, this was the first point at which he realized
Singleton and SirEric had guns. Carvin told Singleton to take him to the hospital at the
University of Kansas Medical Center (KU Med). They did not have enough gas to make
it, so Singleton called his mother, Kiana Jones, who met them in Kansas City and took
Carvin to KU Med. SirEric rode with Carvin and Jones, but when they got to KU Med,
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only Carvin and Jones went inside. At KU Med, Carvin told Kansas City, Kansas police
officers that he had been shot at 18th Street and Parallel in Kansas City, Kansas.
Back at the motel in Lawrence, Thomas left in an ambulance headed for KU Med
to get further treatment. Frye was taken by ambulance to Stormont-Vail hospital in
Topeka. Hooks was taken by ambulance to the Lawrence Municipal Airport to meet a
Life Star helicopter, but he died on the way. After a later autopsy, Dr. Erik Mitchell,
forensic pathologist and the Douglas County Coroner, concluded that Hooks' cause of
death was multiple gunshot wounds, the mechanism of death was bleeding and internal
blood loss, and the manner of death was homicide.
When law enforcement went to KU Med to interview Thomas, they learned that
Carvin had been admitted with a gunshot wound as well. Although they did not think
then that Carvin was involved in the Lawrence shooting, they took Carvin's picture and
sent it to the detectives who were interviewing the other victims. Frye identified Carvin
as one of the individuals who had shot him. Squirrel also identified Carvin as having been
in the motel room.
Officers at the motel searched the parking lot and found a silver semiautomatic
handgun, a black handgun, a bag of marijuana with the end torn off, and what looked like
a blunt. They also found blood near the southeast corner of the motel and a blood trail
between the motel's eastern door and the third floor. Crime scene technician Jana Ramsey
collected the items from the parking lot, as well as a broken watch that Carvin later said
was his. Inside the motel room, Ramsey collected 22 cartridge cases and 13 projectiles.
There were more than 25 bullet holes in the motel room. Ten or 11 of the bullet holes
were in the back wall of the room, which was the south wall, and Detective Zacharia
Thomas determined that the bullets fired in the room generally traveled north to south.
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The manager of the Motel 6 gave police access to the motel's surveillance camera
footage. Detective M.T. Brown took the footage downloaded from the motel surveillance
cameras and excerpted the relevant video, linking it into a linear video of the events as
they happened and as they were picked up by the security cameras in hallways, in the
lobby, and on the motel's exterior.
Through an intensive investigation that need not be detailed for purposes of this
appeal, police focused on Carvin, Singleton, and Smith as suspects. Carvin was arrested
on September 5, 2017. Smith was arrested on September 15, 2017, and Singleton was
arrested on September 27, 2017. The State ultimately charged Carvin with the first-
degree murder of Hooks under alternative theories of felony murder committed during
the commission of aggravated robbery and intentional premeditated murder; one count of
aggravated battery of Frye; one count of aggravated assault of Marlowe; and one count of
attempted aggravated robbery or, in the alternative, aggravated assault of Squirrel.
Carvin, Singleton, and Smith—who were charged with similar crimes—were tried at a
single jury trial that began on August 13, 2018.
Trial evidence
During the trial, the State presented testimony from the dispatchers who received
the initial 911 calls, as well as 3 LPD officers, 13 LPD detectives, and the crime scene
technician. The State presented testimony from a sergeant and an officer with the KU
Med Police Department; two officers with the Kansas City, Kansas Police Department; a
retired state trooper; the United States Deputy Marshal who arrested Smith and Singleton;
and the Kansas Bureau of Investigation latent print examiner, DNA analyst, and firearm
and toolmark examiner who examined items related to this case. Also testifying for the
State were the manager of the Motel 6, the paramedic firefighter who transported Thomas
to KU Med, the registered nurse who treated Carvin's gunshot wound at KU Med,
Singleton's mother, and the Douglas County coroner.
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Frye and Marlowe each testified for the State. Because Squirrel was unavailable,
the State read his preliminary hearing testimony into the record for the jury. Thomas did
not testify; he invoked his Fifth Amendment right against self-incrimination to the judge,
who excused him. The State introduced into evidence over 220 photographs; 3 diagrams;
2 lab reports; recordings of the 911 calls; the defendants' cell phone records; video
footage from the motel, traffic light cameras, toll plaza cameras; and 3-D scans of the
crime scene and the hallway outside. Much of the State's case consisted of identifying
"the men from Kansas City" as Carvin, Singleton, and Smith.
At first, Carvin's defense largely consisted of calling officers and detectives to
testify about internal inconsistencies in Marlowe's, Squirrel's, Thomas', and Frye's
statements to police, as well as inconsistencies between Marlowe's and Frye's trial
testimony and their prior statements. Carvin then testified on his own behalf, admitting
that he, Smith, Singleton, and SirEric were at the motel during the shooting and
reiterating his version of the relevant events as set forth above. On cross-examination,
Carvin repeatedly denied any memory of speaking with LPD at KU Med.
Smith then testified on his own behalf. As relevant here, Smith's version of the
events largely paralleled Carvin's. Smith presented no other witnesses in his defense, and
Singleton neither testified nor presented witnesses.
The State called Detective Jamie Lawson as a rebuttal witness; Lawson had
interviewed Carvin at KU Med and she testified that he was lucid and understood her
questions. Lawson detailed Carvin's statement to her at KU Med, which included that he
did not know the individual who drove him to Lawrence. Carvin eventually told Lawson
that he heard Hooks or Thomas say, "'run that,'" so he believed he and his friends were
being robbed. Carvin at first said no one from his group was armed, but later he said he
might have picked up a gun that was next to him in the room.
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After deliberating, the jury found Carvin and Singleton guilty of the lesser offense
of voluntary manslaughter of Hooks, aggravated battery of Frye, and aggravated assault
of Marlowe but not guilty of attempted aggravated robbery and aggravated assault of
Squirrel. The jury was unable to agree on a verdict for three of the counts against Smith
and found him not guilty of aggravated robbery and aggravated assault of Squirrel.
On October 10, 2018, the district court sentenced Carvin to 233 months'
imprisonment for the voluntary manslaughter, 41 months' imprisonment for the
aggravated battery, and 12 months' imprisonment for the aggravated assault. The district
court ordered the sentences to run consecutive, for a controlling sentence of 286 months'
imprisonment with 36 months' postrelease supervision. The district court also ordered
Carvin to register as a violent offender and to pay restitution. Carvin timely appealed.
SUFFICIENCY OF THE EVIDENCE
Carvin first claims there was insufficient evidence to support his conviction of
voluntary manslaughter. More specifically, he argues that there was insufficient evidence
to show that he possessed an unreasonable but honest belief that deadly force was
justified under the circumstances in the motel room. The State disagrees.
"In a criminal case, when a defendant challenges the sufficiency of the evidence
presented by the State in support of a conviction, an appellate court examines the
evidence in the light most favorable to the State to determine whether a rational factfinder
could have found the defendant guilty beyond a reasonable doubt. The appellate court
does not reweigh evidence, resolve evidentiary conflicts, or make determinations
regarding witness credibility. And the court must examine all the evidence favorable to
the prosecution and determine whether it satisfies the essential elements of a charge.
When making this review, a court does not ignore circumstantial evidence because a
conviction of even the gravest offense can be based entirely on circumstantial evidence.
[Citations omitted.]" State v. Pattillo, 311 Kan. 995, 1003, 469 P.3d 1250 (2020).
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We begin by examining the elements of voluntary manslaughter. K.S.A. 2020
Supp. 21-5404(a) defines voluntary manslaughter as "knowingly killing a human being
committed: . . . (2) upon an unreasonable but honest belief that circumstances existed that
justified use of deadly force under [statutes governing the defense of a person, a dwelling,
property other than a dwelling, a place of work, or an occupied vehicle], and amendments
thereto." This type of voluntary manslaughter is known as imperfect self-defense. See
State v. Qualls, 297 Kan. 61, 70, 298 P.3d 311 (2013).
The State prosecuted Carver on all the charges either as being the principal actor
or under an aiding and abetting theory. As to the voluntary manslaughter charge, the
district court instructed the jury that the State had to prove that Carvin, or another for
whose conduct he was criminally responsible, "knowingly killed Cameron Hooks . . .
upon an unreasonable but honest belief that circumstances existed that justified deadly
force in defense of a person." As for Carvin's theory of self-defense, the district court
instructed the jury that a "[r]easonable belief requires both a belief by defendant and the
existence of facts that would persuade a reasonable person to that belief."
As stated above, Carvin contends there was no evidence that showed he had an
unreasonable but honest belief that deadly force was justified. Carvin asserts that the
State's evidence supported a theory that he or one of his codefendants shot Hooks either
for no reason or as part of a robbery, which would not show that he shot Hooks out of an
honest but unreasonable belief that deadly force was justified. Carvin asserts that if the
jury believed his testimony that he shot in self-defense after he had been shot, it could not
have concluded that his belief that deadly force was justified was unreasonable. On the
other hand, if the jury did not believe his testimony, it could not have concluded that he
had an honest belief that deadly force was justified.
Carvin's characterization of the jury's choice as an either/or decision is inaccurate.
There were many conflicting versions of what happened presented to the jury. The jury
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could piece together the various versions and come to one conclusion on a set of facts
that supported a finding that Carver had an unreasonable but honest belief that deadly
force was justified. For instance, Carvin testified that he did not hear any gunshots before
the shooting. He testified that he "felt like a sharp pain" in his right arm, then picked up a
gun and started shooting. The jury could have concluded from these circumstances that
Carver's subjective belief that deadly force was justified was in fact unreasonable.
Granted, the jury could have found from the evidence that Carvin was only
defending himself, thus making his belief objectively reasonable. But when this court
considers a sufficiency challenge, it does not reweigh the evidence and determine what a
juror should have concluded. Pattillo, 311 Kan. at 1003. We conclude the evidence
presented at trial was sufficient to support a rational juror's finding that Carver had an
unreasonable but honest belief that deadly force was justified.
As a separate issue in his brief, Carvin argues that he could not have been
convicted of voluntary manslaughter under an aiding and abetting theory of liability
because no evidence showed that any of the other alleged perpetrators held an
unreasonable but honest belief that the use of deadly force was justified. Carvin asserts
that "the State must prove every element of the underlying offense was committed by
someone other than the defendant for a conviction as an aider and abettor to stand."
Carvin cites no authority that directly supports his claim. In any event, Carvin's
argument presumes that he was convicted of voluntary manslaughter only as an aider and
abettor. But the district court instructed the jury that to establish the charge of voluntary
manslaughter, the State needed to prove that Carvin or another for whose conduct he is
criminally responsible knowingly killed Hooks with an unreasonable but honest belief
that deadly force was justified. If there was sufficient evidence to convict Carver of
voluntary manslaughter as a principal, as we have just found, it does not matter whether
there was sufficient evidence to convict him as an aider and abettor. Viewing the
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evidence in the light most favorable to the State, we conclude there was sufficient
evidence to support Carvin's conviction of voluntary manslaughter based on an
unreasonable but honest belief that the use of deadly force was justified.
JURY INSTRUCTION ISSUES
Carvin next claims the district court erred in instructing the jury on an aiding and
abetting theory of liability. Carvin argues that because no evidence supported the State's
theory that he aided in a voluntary manslaughter based on imperfect self-defense, the
district court clearly erred by instructing the jury to convict under such a theory. Carvin
also argues that because the federal Constitution requires the State to prove each element
of the crime, the district court erred by instructing the jury that it could convict him of
voluntary manslaughter upon finding that he merely aided in a killing. The State argues
that the district court properly included an aiding and abetting instruction, as both our
existing Kansas caselaw and the facts of the case supported the instruction.
"'When reviewing a jury instruction issue, an appellate court follows a well-
known four-step analysis, whose progression and corresponding standards of review are:
(1) the court considers the issue's reviewability from both jurisdiction and preservation
standpoints, employing an unlimited standard of review; (2) the court determines whether
the instruction was legally appropriate, using an unlimited review; (3) it determines
whether sufficient evidence existed, when viewed in the light most favorable to the
requesting party, to support the instruction; and (4) if the court funds error, it must then
decide whether the error was harmless, using the test and degree of certainty set forth in
State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011).
"'The first step affects the last one because an unpreserved issue will be
considered for clear error, i.e., the error may be considered harmless unless the party
claiming it can convince the court the jury would have reached a different verdict without
the error.' [Citations omitted.]" State v. Gonzalez, 311 Kan. 281, 290-91, 460 P.3d 348(2020).
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The aiding and abetting instruction was instruction No. 6 and the imperfect self-
defense voluntary manslaughter instruction was instruction No. 17. Carvin acknowledges
he did not object at trial to either instruction given by the district court. Thus, we will
review the instructions for clear error and will reverse Carvin's conviction because of an
error only if he can convince us that the jury would have reached a different verdict
without the error. K.S.A. 2020 Supp. 22-3414(3); Gonzalez, 311 Kan. at 291.
Carvin's main argument that the district court erred in instructing the jury stems
from his claim that there was insufficient evidence to convict him of voluntary
manslaughter as an aider and abettor. He argues that because there was insufficient
evidence to convict him of voluntary manslaughter as an aider and abettor, the district
court's decision to give an aiding and abetting instruction created an uncertainty about
which theory the jury relied on to convict him. Thus, Carvin argues that this court
"should apply a super-sufficiency-like requirement before upholding a conviction in
which part of the conviction is supported by insufficient evidence."
But as the State points out, our Supreme Court held in State v. Betancourt, 299
Kan. 131, 137-41, 322 P.3d 353 (2014), that giving an aiding and abetting instruction
does not create alternative means of committing a crime or implicate the super-
sufficiency analysis used in alternative means cases. As Bettancourt explained, "the
language of the aiding and abetting statute [is] an assignment of criminal responsibility,
rather than the creation of a distinct element of a crime." 299 Kan. at 139.
Based on the evidence presented at Carvin's trial, a jury instruction on aiding and
abetting was legally and factually appropriate. "A person is criminally responsible for a
crime committed by another if such person . . . intentionally aids the other in committing
the conduct constituting the crime." K.S.A. 2020 Supp. 21-5210(a). Here, the evidence
shows that Carvin acted in concert with at least Smith and Singleton in the killing of
Hooks. The jury could have found based on circumstantial evidence that Carvin was the
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actual shooter, or it could have found that Carvin assisted others in the shooting. Based
on the evidence, the district court did not err in instructing the jury to consider whether
Carvin was guilty of voluntary manslaughter as an aider or abettor.
Finally, we reject Carvin's claim that the aiding and abetting instruction given by
the district court violated his constitutional rights because it "relieved the State of its
burden of proof." Carvin's reliance on Sandstrom v. Montana, 442 U.S. 510, 99 S. Ct.
2450, 61 L. Ed. 2d 39 (1979), is misplaced. The instruction in that case informed the jury
that a defendant is presumed to intend the consequences of his or her actions. The
Supreme Court determined that this language undermined the presumption of innocence
and might be read by the jury as removing the State's burden to prove the intent element
of the crime charged. 442 U.S. at 521-24. There is no presumption at issue in Carvin's
case. In fact, the challenged instruction explains that criminal liability only attaches to an
accomplice when he or she has the culpable mental state required for the crime and the
intent to aid another in its commission.
In any event, in the context of a jury instruction challenge, which is how Carvin
chooses to frame this issue, he must show that the erroneous instruction affected the
verdict. He has not done so, especially when, as explained above, there was sufficient
circumstantial evidence to convict Carvin of imperfect self-defense voluntary
manslaughter even absent an aiding and abetting theory of liability. We reject Carvin's
claim that the district court's aiding and abetting instruction was clearly erroneous.
READING SQUIRREL'S PRELIMINARY HEARING TESTIMONY INTO THE RECORD AT TRIAL
Carvin next contends that the district court violated his confrontation rights under
the Kansas Constitution by allowing Squirrel's preliminary hearing testimony to be read
into the record at trial. He argues that section 10 of the Kansas Constitution Bill of Rights
provides more extensive protection than its federal counterpart, the Sixth Amendment to
17
the United States Constitution, and he asks this court to depart from the long tradition of
interpreting them coextensively. The State argues that this court should decline to
consider the issue because it is raised for the first time on appeal and, in the alternative,
the State contends that Carvin's argument is unavailing on its merits.
Squirrel's preliminary hearing testimony was read to the jury at Carvin's trial under
K.S.A. 2020 Supp. 60-460(c)(2), allowing introduction of an unavailable witness'
preliminary hearing transcript at trial. Carvin does not challenge the district court's
finding that Squirrel was unavailable to testify at the trial. Still, he argues that under
section 10 of the Kansas Constitution Bill of Rights, K.S.A. 2020 Supp. 60-460(c)(2) was
applied "in an unconstitutional manner here."
Carvin acknowledges that he did not challenge the constitutionality of the statute
in district court. But he argues the issue is preserved for appeal because (1) the newly
asserted theory involves only a question of law arising on proved or admitted facts and is
finally determinative of the case, and (2) consideration of the issue is necessary to serve
the ends of justice or to prevent denial of fundamental rights. See State v. Phillips, 299
Kan. 479, 493, 325 P.3d 1095 (2014). We will address the issue under the second ground.
A statute's constitutionality is a question of law subject to unlimited review. State
v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). "Issues related to confrontation
under the Sixth Amendment to the United States Constitution or the Kansas Constitution
Bill of Rights, § 10 raise questions of law over which this court exercises de novo
review." State v. Brown, 285 Kan. 261, 282, 173 P.3d 612 (2007), abrogated on other
grounds by State v. Williams, 306 Kan. 175, 392 P.3d 1267 (2017).
Section 10 of the Kansas Constitution Bill of Rights guarantees that "[i]n all
prosecutions, the accused shall be allowed . . . to meet the witness face to face." Kan.
Const. Bill of Rights, § 10. Carvin contends this language creates broader protections
18
than the Sixth Amendment's Confrontation Clause, which provides that "'[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him.'" U.S. Const. amend. VI.
But as Carvin acknowledges, the Kansas Supreme Court has repeatedly rejected
the argument that section 10 prohibits the introduction at trial of an unavailable witness'
preliminary hearing testimony. See, e.g., State v. Stano, 284 Kan. 126, 142, 159 P.3d 931(2007) ("[T]he opportunity to cross-examine [the witness] at the preliminary hearing" by
being "present at the hearing to confront [the witness] . . . satisfied defendant's
confrontation rights under the Sixth Amendment and the Kansas Constitution Bill of
Rights, § 10."); State v. Ruebke, 240 Kan. 493, 517, 731 P.2d 842 (1987) ("In cases of
necessity, it is generally held that the right of confrontation under the Sixth Amendment
and Section 10 of the Kansas [Constitution] Bill of Rights is satisfied if the accused has
been once confronted by the witness against him at any stage of the proceedings on the
same accusation and has had an opportunity of cross-examination.").
Carvin asks this court to conclude that the days of coextensive interpretation of the
federal and state confrontation rights are over. But neither case Carvin cites to support
this request involve the interpretation of constitutional confrontation rights. See Hilburn
v. Enerpipe Ltd., 309 Kan. 1127, 1144, 442 P.3d 509 (2019) (analyzing federal and state
constitutional rights to a jury trial); Hodes & Nauser, MDs v. Schmidt, 309 Kan. 610,
638, 440 P.3d 461 (2019) (analyzing federal and state constitutional rights for a woman
to terminate a pregnancy). Our Supreme Court's conclusion that some state constitutional
provisions provide broader protections than the comparable federal counterpart does not
suggest that the Kansas Supreme Court is departing from all prior interpretation of
Kansas constitutional provisions.
This court is "duty bound to follow Kansas Supreme Court precedent unless there
is some indication that the Kansas Supreme Court is departing from its previous
19
position." State v. Dunham, 58 Kan. App. 2d 519, 527, 472 P.3d 604 (2020). Carvin has
provided no legal authority to show that the Kansas Supreme Court is considering
changing its interpretation of section 10 of the Kansas Constitution Bill of Rights on
confrontation rights. Thus, we reject Carvin's contention that the district court violated
his confrontation rights under the Kansas Constitution by allowing Squirrel's preliminary
hearing testimony to be read into the record at trial.
MOTION FOR MISTRIAL
Carvin next claims the district court erred by denying his motion for mistrial. We
need to provide additional facts to address this issue. During Carvin's presentation of
evidence to the jury, after a short recess and during a meeting in chambers with all parties
present, the prosecutor informed the district court that a man who gave the name "John"
had called the LPD the night before and stated he had information about the case. An
officer who spoke with "John" believed that he was suggesting Marlowe might have been
aware ahead of time that a robbery would occur at the motel and that Squirrel had
arranged the robbery. Nicholson, the lead detective on the case, received the information
on the call and traced "John's" phone number to Matthew Spencer, Marlowe's stepfather.
Nicholson testified in-chambers about her conversation with Spencer.
Spencer told Nicholson that during an October or November 2017 conversation,
Marlowe cried and told Spencer that he was afraid of Squirrel because "'Squirrel can
arrange these things.'" Although Spencer asked Marlowe to explain that statement,
Marlowe would not do so. Later in the conversation, Spencer said, "'We thought it was
just you were in the wrong place, wrong time.'" Marlowe replied, "'Wasn't supposed to go
down like this,'" but he again refused to elaborate. When Nicholson asked Spencer if any
of Marlowe's statements suggested that Marlowe or Squirrel were involved in setting up a
robbery, however, Spencer said they did not.
20
Based on this information, Smith moved for a mistrial because the information
was "material to the testimony that one of—a material witness in this case gave which
may provide further documentation of bias or information on why he may not have been
entirely truthful as he testified to this Court and the jury." Singleton joined the motion but
asserted that "we may be able to cure it by bringing Mr. Marlowe"—who had testified
before—"back from Shawnee County [jail] this afternoon." Carvin joined the motion for
mistrial, but he argued that bringing back Marlowe would not cure the problem that the
new information "just opens up a lot of things that have to be investigated."
The State opposed the motion for mistrial, arguing that the new information did
not open new avenues of investigation because there had always been suspicion about
Squirrel's possible involvement with the shooting. The State pointed out that because the
defense had not rested its case, any defendant could subpoena Marlowe and Spencer to
testify. The district court noted the "almost quadruple hearsay" nature of the information
at issue, so it directed Nicholson to speak with Marlowe directly, record that
conversation, and share it with all counsel.
The following morning, the district court listened to the interview with Marlowe,
as well as recordings of the phone calls between Spencer and the officer with whom
Spencer at first spoke. Marlowe said he did not have a good relationship with Spencer, he
did not and would not confide in him, and he had never talked with Spencer about why
the shooting had occurred or told Spencer that he was afraid of Squirrel. Marlowe also
said that he never told anyone that he thought Squirrel had set up the robbery. Marlowe
stated that if Spencer said that conversation had happened, Spencer was lying.
After the district court listened to the recordings, the parties gathered again outside
the presence of the jury. The district court found Spencer's allegations speculative and
noted that Spencer's speculations had been followed up on during the interview with
21
Marlowe, who denied making any of the statements Spencer attributed to him. For these
reasons, the district court denied each defendant's motion for a mistrial.
On appeal, Carvin argues that the district court employed the wrong standard to
decide whether to grant a mistrial because it did not refer to a fundamental failure and,
had the district court used the correct standard, it should have concluded that there was a
fundamental failure in the trial proceedings. Carvin also contends that the State cannot
meet its burden to show that the error did not affect the outcome of the trial, a burden
Carvin alleges the State bears because the district court's erroneous ruling violated his
constitutional rights. Thus, Carvin alleges that the district court's erroneous denial of his
motion for mistrial requires this court to reverse Carvin's convictions or, at the very least,
remand for consideration of the motion under the proper legal standard.
The State responds by first disputing that the district court used the wrong
standard to consider whether to grant a mistrial. Even if it did, the State then argues that
the district court reached the right result because there was no fundamental failure in the
proceedings and because there was no reason to believe that further investigation would
lead to admissible evidence. Finally, the State contends that the denial of the mistrial did
not impact the outcome of the trial.
"We review a district court's decision to deny a motion for mistrial for abuse of
discretion. Judicial discretion is abused if the court's action is arbitrary, fanciful, or
unreasonable; based on an error of law; or based on an error of fact. . . . [T]he party
alleging error[] bears the burden of proving his substantial rights to a fair trial were
prejudiced." State v. Dean, 310 Kan. 848, 851-52, 450 P.3d 819 (2019).
K.S.A. 22-3423(1) sets forth six grounds in which a district court may order a
mistrial. Carvin's motion for mistrial stemmed from the ground that "[p]rejudicial
conduct, in or outside the courtroom, makes it impossible to proceed with the trial
22
without injustice to either the defendant or the prosecution." K.S.A. 22-3423(1)(c). When
a party seeks a mistrial on this ground, a district court must engage in a two-step analysis:
"'First, the trial court must decide if "'there is some fundamental failure of the
proceeding.'" If so, in the second step of the analysis, the trial court must assess whether
it is possible to continue the trial without an "injustice." This means . . . that if there is
prejudicial conduct, the trial court must determine if the damaging effect can be removed
or mitigated by an admonition or instruction to the jury. If not, the trial court must
determine whether the degree of prejudice results in an injustice and, if so, declare a
mistrial.' [Citations omitted.]" Dean, 310 Kan. at 851.
Carvin contends that the district court did not use the proper analysis, pointing to
the fact that the district court did not use the phrase "fundamental failure of the
proceeding" and instead spoke about whether Spencer's statements were significant
evidence. But as the State points out, Kansas appellate courts have held that a district
court can make a fundamental failure finding without using that explicit phrase. See State
v. Kleypas, 305 Kan. 224, 275, 382 P.3d 373 (2016). Here, it is clear from the record that
the district court did not believe there was a fundamental failure in the proceedings.
Carvin also appears to misunderstand the procedural avenue to a mistrial. For a
district court to grant a mistrial under K.S.A. 22-3423(1)(c), as Carvin asserts the district
court should have done, there must be "[p]rejudicial conduct." See K.S.A. 2020 Supp. 22-
3423(1)(c). But along with failing to identify a fundamental failure in the proceedings,
Carvin alleges no specific "[p]rejudicial conduct" that would even trigger the mistrial
analysis under K.S.A. 22-3423(1)(c).
In State v. Moore, 302 Kan. 685, 357 P.3d 275 (2015), the Kansas Supreme Court
explained that a district court's first step for evaluating whether to grant a mistrial under
K.S.A. 22-3423(1)(c) is "deciding whether the prejudicial conduct created a fundamental
failure in the proceeding," a determination that "'varies with the nature of the alleged
23
misconduct, such as whether the allegation is based on the actions of a witness, the
actions of a bystander, prosecutorial conduct, or evidentiary error.'" (Emphasis added.)
302 Kan. at 693. The prejudicial conduct at issue in Moore was that the State allegedly
violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct 1194, 10 L. Ed. 2d 215 (1963), by
failing to timely disclose exculpatory evidence. See Moore, 302 Kan. at 699. Violating
the United States Supreme Court's directive in Brady would be prejudicial conduct that
could trigger a mistrial under K.S.A. 22-3423(1)(c). But to obtain a mistrial, the
defendant had to show that a Brady violation—the alleged prejudicial conduct—had
occurred. Moore, 302 Kan. at 700-01. Because he did not, the district court did not err in
denying the motion for mistrial. 302 Kan. at 701-02.
Carvin does not identify any "prejudicial conduct" other than the district court's
denial of his motion. But the denial of a motion for mistrial logically cannot constitute the
prejudicial conduct required to succeed on that same motion for mistrial any more than it
can constitute the fundamental failure in the proceedings. And, as the State points out,
Spencer's statements were timely disclosed to the defense, which distinguishes it from
situations in which the State engaged in prejudicial conduct by failing to do so. Simply
put, Carvin does not allege nor does the record reflect that anyone—counsel, the judge,
Spencer, Marlowe, or law enforcement—engaged in prejudicial conduct that could have
caused a fundamental failure in the proceeding.
In his reply brief, Carvin asserts that "[t]he whole reason why [he] needed a
mistrial was because he needed his attorneys to investigate Spencer and Marlowe"
because the State was "clearly biased against Carvin while investigating Spencer's new
claims, evidenced by the basic fact that the State was presently trying Carvin for murder."
Carvin argues the district court should have granted a mistrial so that he could perform an
unbiased investigation into Spencer's statements that the State could not complete.
24
Carvin asked only for a mistrial that would have terminated the trial proceedings.
But if Carvin wanted more time to investigate Spencer's allegations, there were other
options available. He could have requested a recess to do independent investigation, or he
could have joined Singleton's request that Marlowe be brought in and questioned in court.
He could have subpoenaed Marlowe or Spencer and asked them about the statements.
Carvin had not completed the presentation of his evidence, and the district court never
ruled that Carvin could not call Spencer or Marlowe as witnesses. Considering all
circumstances presented at Carvin's trial, we conclude the district court did not abuse its
discretion in denying Carvin's motion for a mistrial.
PROSECUTORIAL ERROR DURING CLOSING ARGUMENT
Carvin next claims the prosecutor committed reversible error during closing
argument. More specifically, he argues that during closing argument, the prosecutor
improperly vouched for witnesses' credibility, inaccurately told the jury there was never a
reason to kill, inappropriately commented on facts not in evidence, argued a fact with no
evidentiary support, and tried to inflame the jury. The State responds that none of the
challenged comments were improper. Kansas courts apply a two-step analytical
framework to claims of prosecutorial error:
"'[T]he appellate court must decide whether the prosecutorial acts complained of fall
outside the wide latitude afforded prosecutors to conduct the State's case and attempt to
obtain a conviction in a manner that does not offend the defendant's constitutional right to
a fair trial. If error is found, the appellate court must next determine whether the error
prejudiced the defendant's due process rights to a fair trial. In evaluating prejudice, we
simply adopt the traditional harmlessness inquiry demanded by Chapman [v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error
is harmless if the State can demonstrate "beyond a reasonable doubt that the error
complained of will not or did not affect the outcome of the trial in light of the entire
record, i.e., where there is no reasonable possibility that the error contributed to the
verdict."' [Citations omitted.]" State v. Timley, 311 Kan. 944, 949, 469 P.3d 54 (2020).
25
The first statement Carvin challenges occurred when the prosecutor was
addressing the differences in statements and testimony from Squirrel, Frye, and Marlowe.
The prosecutor argued:
"And you know, the victims, you know, saw different things, and you'll notice
this when you are in deliberations. You know, one juror may remember a witness saying
a particular sentence, and then another juror may say, 'Well, I don't think he said it quite
like that,' and another juror may say, 'Hey, I wrote it down, I have it word-for-word.' So
you're going to be using your collective memories to remember what's happened, what
evidence has been produced over these last two weeks. Just like the victims were trying
to do that.
"And you know, yeah, they could have the [sic] gotten together and all decided—
made up a story to say, 'Oh, yeah, four Kansas City, Kansas, guys were there. We saw all
four of them with a gun in their hand. They all said "run everything."' They could have
had it memorized. They could have been telling a story. But they didn't.
"And this is what's telling. All of them were questioned right after this happened,
and that's what you have. You have their statements from right when it was—happened.
They didn't have any time to get together." (Emphasis added.)
Carvin argues that the italicized language above amounts to the prosecutor saying
that its witnesses told the truth. As he points out, our Supreme Court has repeatedly held
that a prosecutor may not tell a jury that a witness told the truth. See, e.g., State v. Hirsh,
310 Kan. 321, 342-43, 446 P.3d 472 (2019) (holding it was error for the prosecutor to say
of a witness, "'She told the truth'"); State v. Dull, 298 Kan. 832, 837, 317 P.3d 104 (2014)
(holding it was error to say that the victim's version of events was "'the truth'"). Carvin
contends that the prosecutor's statement that the witnesses were not "telling a story" is
"synonymous with saying [those] witnesses told the truth."
But as the State responds, Carvin's argument ignores the context of the
prosecutor's statement. When considered in context, the prosecutor was not improperly
informing the jury that she believed the witnesses were telling the truth. Rather, she was
26
acknowledging the differences between their statements and pointing out the reasonable
inference that had the witnesses predetermined a false version of events to relate, their
statements would have matched more closely. The italicized language could reasonably
be understood to point out that Marlowe, Squirrel, and Frye did not have their stories
memorized and aligned. In addition, she also noted that the jury had evidence about
statements the witnesses made soon after the shooting, which also supports a reasonable
inference that they had not conspired to create those statements.
The wide latitude afforded prosecutors during closing argument "includes
'explaining to juries what they should look for in assessing witness credibility." State v.
Sprague, 303 Kan. 418, 428-29, 362 P.3d 828 (2015). When taken in context, this
comment was not outside the wide latitude afforded prosecutors during closing argument.
Second, Carvin points to the State's rebuttal portion of closing argument:
"[T]here is no element in those crimes that say that the State has to prove motive. That is
an extra element that the defendant wants the State to prove.
"And really, is there ever a reason to kill? I mean, maybe you hear about, 'Well, it
was a domestic violence situation,' or, you know, 'The guy was cray cray [sic] and he
went after people,' and maybe that's the reason for it. But, you know, there's never a
reason to kill. But it happens." (Emphasis added.)
Carvin argues that the phrase "there's never a reason to kill" misstates the
controlling law because under the law, there is at least one acceptable reason to kill—in
self-defense—which was Calvin's defense in this case. Although the phrase "a reason to
kill" is ambiguous, Kansas law does allow for consideration of the reason for killing. For
example, as Carvin argues, voluntary manslaughter includes knowingly killing a human
being upon an unreasonable but honest belief that the circumstances justify the use of
deadly force. See K.S.A. 2020 Supp. 21-5404(a)(2). And under certain circumstances,
27
Kansas law provides for immunity from criminal prosecution for killing another person.
See K.S.A. 2020 Supp. 21-5231.
The State responds that, when taken in context, the prosecutor was merely
responding to Carvin's argument in his own closing that he had no motive to kill Hooks,
Marlowe, Frye, Squirrel, or Thomas. This characterization of the context of the comment
is accurate. But improper argument constitutes prosecutorial error "'even if the improper
argument is made in response to arguments or statements by defense counsel.'" State v.
Marshall, 294 Kan. 850, 860, 281 P.3d 1112 (2012). And "[a] prosecutor 'cross[es] the
line by misstating the law.'" State v. Davis, 306 Kan. 400, 413, 394 P.3d 817 (2017). In
Davis, our Supreme Court found prosecutorial error when the prosecutor argued to the
jury that "'you don't spend the rest of your life in prison unless you killed'" because
"Kansas law punishes crimes other than murder with life sentences." 306 Kan. at 413.
Similarly, the prosecutor here misstated the law and, thus, committed error when she told
the jury that "there's never a reason to kill."
Prosecutorial error is harmless under Chapman if the State can show "'beyond a
reasonable doubt that the error complained of will not or did not affect the outcome of the
trial in light of the entire record, i.e., where there is no reasonable possibility that the
error contributed to the verdict.'" Timley, 311 Kan. at 949. The State has met that burden
here. First, the misstatement of the law was directly contradicted and cured by the district
court's instructions to the jury, which included an explanation that under specific
circumstances, an individual may use even deadly force against another person. And as
the State points out, the jury convicted Carvin of voluntary manslaughter, which shows
that it found Carvin honestly but unreasonably believed he needed to use deadly force.
The jury's verdict of voluntary manslaughter instead of first-degree murder shows it
understood there can be a reason to kill.
28
Carvin's third challenge stems from the final portion of the State's closing
arguments:
"[THE PROSECUTOR:] You are always going to have questions during the trial
because we can't possibly keep you here for 365 days and give you every piece of every
information about a case.
"It's our job to—
"[CARVIN'S COUNSEL]: Your Honor, I'm going to object. That's calling for
them to speculate that the State has evidence that they didn't present.
"THE COURT: Sustained.
"[THE PROSECUTOR]: It's our job as prosecutors to decide what evidence to
give to you to prove to you beyond a reasonable doubt. You are always going to have
questions. But after the case is over—and you'll have questions, too, because the Court
has made legal rulings of what you can hear.
"So after everything is done, after there is a verdict, then the Court or the
attorneys can tell you.
"[CARVIN'S COUNSEL]: Your Honor, objection.
"[THE PROSECUTOR]: Answer questions.
"THE COURT: Sustained."
Carvin contends that this portion of the State's closing discussed facts that were
not in evidence and "diverted the jury's attention from the evidence by implying that it
had extra evidence of guilt it chose to keep from [the jury] and by talking about after-
verdict discussions." The State responds that the prosecutor's statement responded to
defense counsel's argument that there were too many unanswered questions to convict
and that it was meant to explain to the jury that the State had to choose which evidence to
present and that it cannot always answer every question a juror might have.
The parties do not provide—and our independent research has not revealed—a
case involving alleged prosecutorial error of this nature. Regardless of the lack of on-
point caselaw, Carvin's argument that the prosecutor's implication that there was more
29
evidence the jury had not seen due to time constraints and the statement that jurors could
learn about more evidence after the verdict is persuasive. While the prosecutor's intent
may have been understandable, the statements served no purpose other than to refer to
evidence that was not before the jury. But we find the error was harmless based in part on
the fact that the district court sustained Carvin's objection to the prosecutor's statement.
More importantly, the district court instructed the jury that its verdict should depend only
on evidence admitted in the trial. We conclude there is no reasonable possibility that the
error contributed to the verdict. See Timley, 311 Kan. at 949.
Fourth, Carvin argues that the prosecutor erred by saying:
"They argued that, you know, these guys were running out of the room stumbling
over each other because they were so panicked because they were trying not to get shot.
There is no evidence that they were getting shot. There's no bullets going towards the
door, going towards the bathroom." (Emphasis added.)
Carvin contends that the italicized language was unsupported by evidence and
misstated the facts. But taken in context and considering the other evidence at trial, the
prosecutor did not err by stating that no evidence showed that the men from Kansas City
were being shot at as they ran out of the room. Although Carvin is correct that he suffered
a gunshot wound, his own testimony was that he was shot before he began to run out of
the room. He also testified that when he was running out the door, he believed he was the
only person shooting. Moreover, as the State points out, Detective Thomas testified that
the bullets fired in the motel room were traveling toward the back wall of the room,
which supports a reasonable inference that no bullets were fired toward individuals
running out of a door opposite that wall. Thus, the prosecutor's statement that there was
no evidence the men were being shot at as they ran out of the room was sufficiently
supported by admitted evidence, and it was not error.
30
Fifth, toward the very end of closing argument, the prosecutor said, "Carvin's the
only one that says Hooks had the gun. And the only time he said it was here in his murder
trial. Can we bring Hooks in to say, 'Hey, no, no, no'? No. Because they shot him in the
back and he's dead." (Emphasis added.) Carvin argues that the italicized comment was
intended to improperly inflame the passions of the jury by playing on sympathy over
Hooks' death. The State responds that the remark responded to Carvin's allegation that
Hooks had a gun on the night of the shooting and to Smith's and Singleton's arguments
that Hooks was, at least in part, an instigator in the shooting.
The State's position is more persuasive. In State v. Bennington, 293 Kan. 503, 532,
264 P.3d 440 (2011), our Supreme Court considered whether a prosecutor had improperly
tried to inflame a jury's passion by saying during closing argument, "'The victim's not
here to show, to tell you her side of the story, and so we have to rely on hearsay.'" Noting
that "'[p]rosecutors are not allowed to make statements that inflame the passions or
prejudices of the jury,'" the Bennington court found that the remarks "were not an attempt
to create sympathy but were an attempt to support the State's case, despite its inability to
present testimony from the victim." 293 Kan. at 532-33.
The same is true of the prosecutor's statement in this case. Carvin had testified that
Hooks pointed a gun at him. Smith argued during closing that "[i]t is equally plausible
that Mr. Carvin was lured to this hotel to be robbed by Mr. Squirrel and Mr. Hooks and
Mr. Thomas." Singleton similarly argued during closing that there was "evidence of an
attempted robbery by Squirrel and Hooks and Thomas and that group against the four
men from Kansas City." During the rebuttal portion of closing, when the prosecutor said
that Hooks could not testify because he was dead, she did not use inflammatory language
or otherwise appear to be trying to stoke the jury's passion. Rather, she was pointing out
that because he had died as a result of the shooting, Hooks could not testify to rebut the
testimony that he had a gun or the arguments that he had instigated the shooting. Like the
31
statements made in Bennington, this remark is within the latitude allowed prosecutors to
craft closing argument and it does not constitute prosecutorial error. See 293 Kan. at 533.
CUMULATIVE ERROR
Finally, Carvin argues that even if no error individually warrants reversal of his
convictions, the cumulative effect of the errors does so. The State disagrees.
"The test for cumulative error is whether the errors substantially prejudiced the
defendant and denied the defendant a fair trial given the totality of the circumstances. In
making the assessment, an appellate court examines the errors in context, considers how
the district court judge addressed the errors, reviews the nature and number of errors and
whether they are connected, and weighs the strength of the evidence. If any of the errors
being aggregated are constitutional, the constitutional harmless[ness] test of Chapman
applies, and the party benefitting from the errors must establish beyond a reasonable
doubt that the cumulative effect of the errors did not affect the outcome. [Citations
omitted.]" State v. Thomas, 311 Kan. 905, 914, 468 P.3d 323 (2020).
We have agreed with only two of Carvin's claims of error: In closing argument,
the prosecutor misstated the law by informing the jury there is no reason to kill, and she
erred by referring to evidence the State allegedly possessed that had not been admitted at
trial. Considered in context, the comments were made close in time and toward the end of
the two-week trial. The comments did not pervade the trial, the district court sustained an
objection to the second comment, and the jury instructions steered the jury back to the
appropriate considerations and correctly stated the law. Considering the totality of the
circumstances, the two instances of prosecutorial error during closing argument, even
when considered in the aggregate, did not deny Carvin a fair trial.
Affirmed.
32