Opinion
No. 109,675.
2014-10-24
STATE of Kansas, Appellee, v. Aaron ALVAREZ, Appellant.
Appeal from Reno District Court; Timothy J. Chambers, Judge.Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Timothy J. Chambers, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following a 4–day jury trial, Aaron Alvarez was convicted of the intentional second-degree murder of Allen Frank. Alvarez appeals from that judgment, arguing that the district court committed several errors in instructing the jury, the prosecutor committed misconduct during closing argument, and cumulative error entitles him to a new trial.
We find no reversible error and, accordingly, affirm Alvarez' conviction.
(We note for the record that Alvarez appeared through counsel and was accorded oral argument. Due to a procedural and/or scheduling misunderstanding, the State did not appear for oral argument.)
Facts
The following factual scenario is distilled from the testimony presented at trial.
On November 23, 2011, Alvarez, Frank, Jessica Roberts, Lakisha Magee, and Anthony Liptow were at a local bar in Hutchinson. The group had been drinking alcohol all day. Alvarez was purportedly intoxicated and kicked out of the bar after becoming belligerent. The group subsequently left the bar in a vehicle driven by Liptow to take Alvarez back to a house rented by Daniel Montiel and Siomara Duran, where Alvarez and his girlfriend, Roberts, had begun staying in the basement a few days earlier. On the way, Alvarez and Roberts began arguing. The argument turned physical; Alvarez began hitting and choking Roberts seated behind him. Magee, who sat next to Roberts, dove in front of her and was also hit several times by Alvarez.
Liptow testified that Alvarez would not respond to his request to calm down. When the group arrived at the house, Liptow observed Alvarez get out of the vehicle and go up to the back door and begin banging on it. Liptow then observed Montiel come out of the house looking “pretty [upset].” Liptow stated that after he observed Alvarez go inside the house, he and Frank got out of the vehicle and followed Alvarez to go “check on him” and “make sure he was okay.” Once Liptow ensured Alvarez got in the house okay, he went back to his vehicle and left with Roberts and Magee. During cross-examination, Liptow testified that he believed Frank was angry while the pair followed Alvarez to the house. Liptow also stated Frank went by the nickname “Ali” and that he had referenced “Mohammad Ali” and claimed to be a Golden Gloves boxer during a previous discussion about his nickname.
Magee also testified that Frank went by the street name “Ali” and that he had been involved with Golden Gloves “for a while.” Magee stated Frank was angry at Alvarez for hitting her and also beating up Roberts in front of him. Magee asserted that Frank got out of the car and “chased” Alvarez in the house. During redirect, Magee acknowledged that she had told police that Frank and Liptow had “followed” Alvarez to the house. Then Magee stated that everyone just walked into the house and nobody came back out of the door. Magee acknowledged that despite Frank being angry with Alvarez, she did not observe him attempt to hit or tackle Alvarez after getting out of the car.
Montiel testified that he, Duran, their son, and his nephew were in the living room watching television when they heard someone banging loudly on the back door to the house. When Montiel opened the door, Alvarez came in and immediately went to the bathroom. Montiel thought Alvarez had been drinking. While Alvarez was in the bathroom, Frank came inside the house. Montiel observed that Frank was upset or angry, and he began explaining to him that Alvarez had hit Roberts and Magee while they were in the vehicle. Montiel stated that when Alvarez came out of the bathroom, he and Frank began having a loud discussion or argument about what had happened in the vehicle. Montiel had told them both to go downstairs.
Montiel, Alvarez, and Frank all went downstairs. As they went down the stairs, Montiel stated Alvarez punched a metal heating vent after being told to calm down. Once in the basement, Montiel observed Frank and Alvarez begin arguing over Alvarez hitting Magee. Montiel testified he observed Alvarez punch Frank in the face, after which the pair then began to throw punches at one another. During redirect, Montiel characterized Frank's actions in response to being punched as an attempt “to defend himself.” Montiel told the police Alvarez and Frank were wrestling and that he never witnessed Frank throw a punch at Alvarez.
Montiel then observed the two men separate, and Alvarez had a knife in his hand. Montiel told the police that Frank stepped towards Alvarez and said, “What are you going to do, shank me?” To which Alvarez responded, “I'll kill you.” During trial, Montiel characterized Alvarez' response to Frank's question as saying, “Like he didn't care, you know, about killing anybody and stuff like that.” Montiel testified that when Frank stepped towards Alvarez, Alvarez responded by swinging the knife towards Frank's neck and then thrusting the knife toward Frank's stomach. Montiel told the police that when Frank stepped towards Alvarez asking him if he was going to shank him, Alvarez “stepped towards [Frank] and stabbed him in the stomach.”
Montiel testified he repeatedly told Alvarez after the stabbing to give him the knife and he refused. Montiel told the police that his focus at that moment was on the knife because he did not know where Frank had gone after being stabbed and he was concerned what Alvarez was going to do to him because Alvarez “was upset with him, also.” Montiel subsequently found Frank in the utility room lying on the floor with a pale complexion. Montiel stated Alvarez appeared briefly and told him Frank “was faking it.” Montiel told the police that Alvarez said that Frank was “just playing around” and “he's not really hurt.”
Montiel examined Frank and located a stab wound to his stomach and a slash wound to his neck. Meanwhile, Duran had heard a loud noise and gone downstairs, where she found Frank lying on the floor. Duran testified she told Montiel not to touch Frank and call the police and that Alvarez looked scared. Duran then told Alvarez not to go anywhere. Montiel ran to the neighbor's house and called 911. Duran stated that while she was checking on Montiel she observed Alvarez appear at the front of the house and then take off running to the backyard away from the house when he saw Montiel on the telephone.
Scott Kipper, M.D., the Sedgwick County medical examiner, testified to the injuries Frank sustained. In addition to a contusion on his head, a laceration under his left eyebrow, several scattered abrasions on his face and scalp, and some abrasions on his left forearm and finger, Frank suffered a sharp force injury or wound approximately 4 inches long to the right side of the neck. Frank had also been stabbed in the stomach with such force that the object penetrated his colon, nicked the aorta causing massive internal bleeding, and then struck the vertebra in his back causing a wound. The stab wound to Frank's stomach caused his death.
Officer Josh Radloff and Detective Tyson Meyers of the City of Hutchinson Police Department testified to the subsequent investigation. The police searched the house and immediate vicinity and could not locate Alvarez or the weapon used on Frank. Several hours after the incident, officers located and arrested Alvarez in a cottage next door to the house Frank lived. The murder weapon was never recovered.
Detective Meyers testified that Alvarez waived his Miranda rights at the police station. During the ensuing interview with the Kansas Bureau of Investigations agent, Alvarez repeatedly wanted to know why he had been arrested, claimed he had not been involved in anything, and said he did not remember being in a fight or stabbing anyone. When the investigators observed a cut on Alvarez' hand, he was asked whether he carried weapons; Alvarez denied doing so. Alvarez was argumentative throughout the interview and repeatedly made “smart aleck” comments. Alvarez never claimed he had to use a knife to defend himself from Frank.
After the close of the State's case-in-chief, Alvarez took the stand and testified on his own behalf. He considered Frank his friend and referred to him as “Ali.” When asked how Frank got this nickname, Alvarez stated Frank “was a Golden Gloves Boxer and he's just known for always getting into fights and winning and just being, just a big bad dude.” As to the incident in Liptow's vehicle, he testified that he remembered somebody in the backseat was throwing stuff at him and that he had been arguing with Roberts. He claimed to have blacked out after having been scratched and punched in the back of the head and did not remember physically fighting Roberts or hitting either her or Magee. Alvarez claimed this black out session ended the moment they arrived at his house and he jumped out of the vehicle.
Alvarez testified that when he got out of the car Frank followed him up to his house angrily yelling threats such as, “[W]hy you hit my girl. I'm going to beat you like you did her.” He described banging on the door, entering the house, and going straight to the bathroom. Alvarez stated he then went down to the basement, after which he heard Montiel and Frank follow him down the stairs. He claimed Frank then confronted him about hitting Magee and threatened to mess him up. Alvarez said he began yelling back telling Frank he did not know what had happened. After which, he apologized and asked Frank to leave. Alvarez stated he then punched Frank in the face because Frank jumped at him “like he was going for my throat.”
Alvarez acknowledged the two men then began to wrestle. While wrestling, Alvarez felt Frank was trying to “choke him out.” The two finally separated, and Frank “backs up a little bit.” Alvarez stated he pulled out a knife because he was scared and held it out in front of himself telling Frank to leave him alone. Frank responded by asking him, “What are you going to do, shank me?”
Alvarez then testified that Frank jumped forward at him a second time and he swung his knife left to right in a slashing motion, probably hitting Frank's neck. Frank stepped back telling him, “I'm going to fuck you up,” and then jumped at him again. Alvarez testified he stepped back and stabbed the knife out in front of him, feeling it enter Frank. He stated he was only trying to scare Frank. Alvarez then left the scene.
Frank's mother, Kimberly Frank, testified on rebuttal regarding her son's nickname and purported boxing experience. Kimberly stated Frank's nickname was “Alley,” which was short for “Allen,” and he had never been involved in Golden Gloves or boxing.
After both sides had rested, the district court denied Alvarez' request that the jury be instructed on his theory of self-defense. The district court instructed the jury that it could convict Alvarez of the second-degree intentional murder (the charged crime) or the sequential lesser-included offenses of second-degree unintentional but reckless murder, voluntary manslaughter/heat of passion, and reckless involuntary manslaughter. After hearing closing arguments, the jury returned with a verdict finding Alvarez guilty of second-degree intentional murder in violation of K.S.A.2011 Supp. 21–5403(a)(1). The district court subsequently sentenced Alvarez to an aggravated presumptive sentence of 186 months in prison. Alvarez appealed.
Analysis
The Jury Instructions
Alvarez raises three challenges to the jury instructions: (1) that the district court erred in denying his request to instruct the jury on his theory of self-defense; (2) that the district court erred by failing to instruct the jury regarding voluntary manslaughter/ imperfect self-defense; and (3) that the district court erred by instructing the jury to consider the charge of intentional second-degree murder and the lesser included offense of voluntary manslaughter sequentially instead of simultaneously.
Progression of Analysis and Corresponding Standards of Review
The Kansas Supreme Court has recently clarified the analytical progression and corresponding standards of review for each step when considering whether the district court should have a given particular instruction:
“(1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012).' [Citation omitted.]” State v. Smyser, 297 Kan. 199, 203–04, 299 P.3d 309 (2013).
Self–Defense
Alvarez argues he presented sufficient evidence through his testimony to warrant the district court granting his request to instruct the jury on self-defense and that the district court committed reversible error in denying his request. The State essentially responds that Alvarez' testimony did not support self-defense because it showed that Alvarez not only precipitated the confrontation with Frank that resulted in Frank's death but struck the first blow as the aggressor in mutual combat.
Alvarez has preserved this issue because he requested that the jury be instructed on self-defense both in his written proposed instructions to the district court and at the instruction conference. Accordingly, we next examine whether a self-defense instruction was legally and factually appropriate.
Generally, “ ‘ “[a] defendant is entitled to instructions on the law applicable to his or her theory of defense if there is evidence to support the theory. However, there must be evidence which, viewed in the light most favorable to the defendant, is sufficient to justify a rational factfinder finding in accordance with the defendant's theory.” ‘ “ State v. Hendrix, 289 Kan 859, 861, 218 P.3d 40 (2009) (quoting State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 [2008] ). A self-defense instruction may be warranted “if there is any evidence tending to establish self-defense even though the evidence may be slight and consist solely of the defendant's testimony.” State v. Hill, 242 Kan. 68, Syl. ¶ 4, 744 P.2d 1228 (1987); see Anderson, 287 Kan. at 334.
Here, the State charged Alvarez with intentional second-degree murder under K.S.A.2011 Supp. 21–5403(a)(1), which required Alvarez have the specific intent to kill Frank. Self-defense can be a legal defense against a charge of second-degree intentional murder. See, e.g., State v. Bell, 273 Kan. 49, 50, 41 P.3d 783 (2002). Alvarez was entitled to use deadly force against Frank if he reasonably believed that such use of deadly force was necessary to defend against Frank's “ imminent use of unlawful force ” so as to prevent his own “ imminent death or great bodily harm.” (Emphasis added.) K.S.A.2011 Supp. 21–5222(a), (b).
To justify an instruction on self-defense, Alvarez must present some evidence through his own testimony or from other witnesses to satisfy a two-prong test. Under the subjective standard in the first prong, Alvarez must show that he sincerely and honestly believed it was necessary to kill to defend himself. The second prong is an objective standard, which requires Alvarez show that a reasonable person in the same circumstances would have perceived the use of deadly force was necessary. See State v. McCullough, 293 Kan. 970, 975, 270 P.3d 1142 (2012). The Kansas Supreme Court has clarified that the objective prong of the self-defense test may not rest on a defendant's uncorroborated statements alone; appellate courts evaluate the evidence presented by the defendant in light of the totality of the circumstances. State v. Gonzalez, 282 Kan. 73, 112, 145 P.3d 18 (2006).
At an instruction conference, Alvarez argued a self-defense instruction was appropriate because there was sufficient evidence that “he believed that he used the force necessary to repel what he believed was an unlawful attack by Mr. Frank.” Alvarez argued his own testimony indicated he subjectively believed Frank was a trained Golden Gloves boxer and that the objective facts showed when he produced the knife Frank did not seem scared and had moved towards him.
Pointing to the two-prong test, the district court first stated that Alvarez' testimony satisfied the subjective prong. The district court, however, found the objective prong was not met because (1) Alvarez' testimony showed that he was the aggressor in a mutual combat situation and had struck the first and only punch in the incident, (2) the mutual combat or wrestling match between Alvarez and Frank “was two individuals standing up and never resulted in anyone going to the floor or any significant altercation,” and (3) there was no evidence that Frank ever attempted to use his alleged boxing skills. The district court, in ruling that it would not give a self-defense instruction, concluded a reasonable person would not have believed it necessary to use deadly force in a mutual combat situation, even if facing a Golden Gloves boxer.
Alvarez continues to maintain on appeal that his testimony satisfied both the subjective and objective prongs of the self-defense test and that his circumstances required the use of deadly force. But as the Kansas Supreme Court noted in McCullough, even if the parties dispute whether both prongs were satisfied, “the threshold question is whether self-defense can even be invoked.” (Emphasis added.) 293 Kan. at 975. Our Supreme Court explained;
“The doctrine of self-defense cannot excuse a killing done when the defendant willingly engaged in mutual combat unless the defendant has withdrawn in good faith and done everything in the defendant's power to avert the necessity of the killing. [Citation omitted.] This rule does not destroy the right to self-defense in all mutual combat cases; but for self-defense to justify the killing, the defendant must be acting ‘solely for the protection of [the defendant's] own life, and not to inflict harm upon [the defendant's] adversary.’ [Citations omitted.]” (Emphasis added.) 293 Kan. at 975–76.
The Kansas Supreme Court has defined mutual combat as “ ‘ “[o]ne into which both the parties enter willingly or voluntarily; it implies a common intent to fight, but not necessarily an exchange of blows.” ‘ [Citation omitted.]” State v. Friday, 297 Kan. 1023, 1038, 306 P.3d 265 (2013). And the court has stated that if both parties willingly engage in mutual combat it does not matter who initiated the confrontation:
“ ‘If the parties fought by mutual consent the circumstances of who committed the first act of violence was immaterial; and, so long as each combatant persisted in his original determination to vanquish his antagonist the aggressions were mutual. A resistance which has for its real object the securing of an opportunity to mangle the assailant is not legal self-defense.’ [Citation omitted.]” Friday, 297 Kan. at 1038.
Here, in finding that Alvarez' testimony satisfied the subjective prong of the self-defense test, the district court failed to consider that, by finding that Alvarez had either initiated or willfully participated in mutual combat, the subjective prong could not be satisfied. State v. Barnes, 263 Kan. 249, 265–66, 948 P.2d 627 (1997).
When Alvarez' testimony is viewed in a light most favorable to him, it could support an honest and sincere subjective belief that Frank, if he was indeed a Golden Gloves boxer, posed a threat to him. But the stumbling block for Alvarez' subjective belief is that the evidence does not support he sincerely and honestly believed it was necessary to stab and kill a Golden Gloves boxer to defend himself because he did initiate and willingly engage in mutual combat with Frank. Alvarez does not dispute that he struck the first punch during a verbal argument, which then led to the two men wrestling. Eyewitness Montiel even characterized this wrestling as Frank's attempt to defend himself from Alvarez. The record indicates once the parties separated Alvarez certainly did not withdraw in good faith and do everything in his power to avoid killing Frank—he escalated the argument a second time by brandishing a knife and announcing his intention to kill Frank.
There was no evidence during the initial physical confrontation at the residence upon which a jury could reasonably believe that Frank was the aggressor and contemplated the “imminent use of unlawful force.” Once Alvarez drew the knife, the evidence does not support any inference that Alvarez needed to respond to any aggression by Frank by exercising deadly force to prevent his imminent death or great bodily harm. The lack of evidence supports the district court finding that the objective prong of the self-defense test was not met because a reasonable person in Alverez' position would not have believed it necessary to use deadly force.
Under the principles set forth in McCullough and Barnes, the request for the self-defense instruction was properly denied.
Imperfect Self–Defense
Since Alvarez was not entitled to a self-defense instruction, his argument that he was entitled to a voluntary manslaughter instruction based on a theory of imperfect self-defense must also fail.
Alvarez acknowledges he did not request an imperfect self-defense instruction as an alternative means to the voluntary manslaughter instruction given. However, Alvarez did preserve this issue because his written proposed instructions submitted to the district court included the imperfect self-defense provision. The State did not address this issue.
K.S.A.2011 Supp. 21–5404(a) defines voluntary manslaughter as “knowingly killing a human being committed: (1) upon a sudden quarrel or in the heat of passion; or (2) upon an unreasonable but honest belief that circumstances existed that justified use of deadly force under K.S.A.2011 Supp. 21–5222.” The circumstances described under the alternative means of K.S.A.2011 Supp. 21–5222(b) are restricted to a defendant's “use of force against a third person when ... such use of force is necessary to defend [the defendant] or another against such other's imminent use of unlawful force.”
Here, the jury was instructed under K.S.A.2011 Supp. 21–5404(a). Evidence that would have supported an instruction on voluntary manslaughter under subsection (b) would have shown that Alvarez honestly, if unreasonably, believed that Frank was the aggressor and that it was necessary for him to stab and kill Frank to defend himself against Frank's imminent use of unlawful force. Thus, unlike the self-defense analysis that requires both a subjective and reasonable belief, the voluntary manslaughter imperfect self-defense analysis “is identical to the first, subjective prong required to justify a self-defense instruction.” Gonzalez, 282 Kan. at 111.
We have already determined that Alvarez' participation in mutual combat prevents satisfaction of the subjective prong of the self-defense test. It follows then that he was not entitled to a voluntary manslaughter instruction under K.S.A.2011 Supp 21–5404(b). See Barnes, 263 Kan. at 265–66.
Voluntary Manslaughter Instruction
Alvarez also argues that the district court erred by instructing the jury to consider the offense of second-degree intentional murder and the lesser included offense of voluntary manslaughter sequentially rather than simultaneously. The State contends that Alvarez invited any error by specifically advising the district court that he had no objection to the reasoning behind the court's decision to instruct the jury as given.
Alvarez never requested that the district court include an instruction requiring simultaneous consideration that complied with PIK Crim.3d 56.05(B), nor did he object to its omission before the jury retired. In such situations, we review this argument under the same four-pronged analysis previously mentioned but will only reverse if we find the failure to be clearly erroneous. See K.S.A. 22–3414(3); Smyser, 297 Kan. at 204. To be clearly erroneous, we must first find there was error and then we must be “firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” Smyser, 297 Kan. at 204. Alvarez, as the party claiming error in the instructions, has the burden to prove the degree of prejudice necessary for reversal. See Smyser, 297 Kan. at 204.
Voluntary manslaughter is a lesser-included offense of second-degree murder. State v. Foster, 290 Kan. 696, 711, 233 P .3d 265 (2010). Prior to July 2011, the crime of voluntary manslaughter under K.S.A. 21–3403 required “intentional” conduct. When voluntary manslaughter was instructed upon as a lesser-included offense rather than a charged crime, the trial court was required to instruct using PIK Crim.3d 56.05(B), which directed the jury to consider the offenses of second-degree murder and voluntary manslaughter simultaneously rather than sequentially. See State v. Graham, 275 Kan. 831,837, 69 P.3d 563 (2003).
On July 1, 2011, however, the legislature changed the culpable mental state for voluntary manslaughter from “intentional” to “knowingly.” K.S.A.2011 Supp. 21–5404. PIK Crim. 4th 54.170 followed suit by changing the relevant language reflecting the new culpable mental state and also eliminated alternate B from the prior version PIK Crim.3d 56.05. Kansas courts have not addressed the question whether PIK Crim.3d 56.05(B) applies to an offense committed after July 1, 2011, as in the case here. However, we need not address that question because Alvarez' challenge to the instruction is precluded by the rule of invited error. See State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011).
Alvarez' written proposed instruction to the district court on voluntary manslaughter as a lesser-included offense of second-degree murder complied with PIK Crim. 4th 54.170, not PIK Crim.3d 56.05(B). During the instruction conference, the State raised the question whether the jury should be instructed to consider the second-degree unintentional murder and involuntary manslaughter simultaneously. At that point, the district court had indicated, without objection from Alvarez, it intended to instruct the jury it could convict Alvarez of second-degree intentional murder, or the lesser-included offenses of second-degree unintentional murder, voluntary manslaughter/heat of passion, or reckless involuntary manslaughter. After asking the parties to review PIK Crim.3d and PIK Crim. 4d and reminding them that “the elements certainly at the time of the offense apply, but the PIK instructions now should apply,” the district court adjourned for the evening.
The next day at the instruction conference, the district court discussed the relationship between PIK Crim.3d 56.05(B) and PIK Crim. 4th 54.170. In finding its original proposed instructions having the jury consider the lesser offense of voluntary manslaughter sequentially was correct, the district court reasoned:
“[W]hen voluntary manslaughter was defined requiring an intentional act the appellate courts indicated that the elements then of intentional second and voluntary are identical except for the mitigating circumstances. Therefore, the case law indicated that intentional second and voluntary must be determined, or decided simultaneously by the jury to determine if there was a mitigating circumstance. That would be paragraph B in the PIK 3rd criminal.
“... July 1 of 2011 ... the legislature changed from an intentional act to a knowing act. And when PIK 4 came out paragraph (b) was removed because they are no longer identical, the elements between intentional second degree and voluntary manslaughter.
“Therefore that case does not apply and they are [not] to be considered simultaneous. We go back to just what is, would be viewed as a traditional lesser included.... [W]e are dealing with the crime occurred in November of 2011, which occurred after the amendment to voluntary manslaughter and it is a knowing act.
“... Because we are not dealing with an intentional voluntary manslaughter which is identical to intentional second degree. We're dealing with a different terminology. I would suspect that's why the legislature made that change and why paragraph (b) is not in PIK 4.”
The district court then asked Alvarez' attorney to comment on its decision, who responded: “Judge, I have no reason to question the court's reasoning, and I have no objection to going back to where we were yesterday.” Alvarez' attorney then reminded the district court that it needed to change the culpable mental state for voluntary manslaughter in the district court's proposed Instruction 10 from “intentional” to “knowingly.” Instruction 10, in relevant part, ultimately mirrored PIK Crim. 4th 54.170 and advised the jury to consider the lesser offense of voluntary manslaughter sequentially.
Alvarez not only clearly agreed with the district court's reasoning behind its decision to use Instruction 10 as drafted but also helped to ensure that its language accurately reflected PIK Crim. 4th 54.170. Under the invited error doctrine, a defendant cannot challenge an instruction on appeal, even as clearly erroneous under K.S.A. 22–3414(3), when there has been on-the-record agreement to the wording of the instruction at trial. State v. Peppers, 294 Kan. 377, 393, 276 P.3d 148 (2012).
Prosecutorial Misconduct
Next, Alvarez alleges the State committed misconduct during closing argument when the prosecutor misstated the level of culpability required for the unintentional second-degree murder and reckless involuntary manslaughter lesser-included offenses.
Alvarez did not object to the prosecutor's alleged improper comment during closing argument. However, contemporaneous objection is not required to preserve questions of prosecutorial misconduct based on comments made in closing argument. State v. Anderson, 294 Kan. 450, 461, 276 P.3d 200 (2012). A misstatement of controlling law must be reviewed on appeal, regardless of a timely objection, to protect a defendant's right to due process. State v.. Gunby, 282 Kan. 39, 63, 144 P.3d 647 (2006).
Appellate review of an allegation of prosecutorial misconduct involving improper comments to the jury requires a two-step analysis. First, the court determines whether the prosecutor's comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. If misconduct is found, the appellate court must then determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
The charged crime, second-degree intentional murder, is a specific intent crime, requiring proof of intent to kill. K.S.A.2011 Supp. 21–5403(a)(1); see State v. Deal, 293 Kan. 872, 883, 269 P.3d 1282 (2012). The district court here determined that the evidence was sufficient to also instruct the jury on the lesser-included offenses of second-degree unintentional murder, voluntary manslaughter/heat of passion, or reckless involuntary manslaughter.
Unintentional second-degree murder is a murder committed “unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A.2011 Supp. 21–5403(a)(2). More specifically, it is “a killing of a human that is not purposeful, willful, or knowing but which results from an act performed with knowledge the victim is in imminent danger, although death is not foreseen.” Deal, 293 Kan. at 884. And reckless involuntary manslaughter under K.S.A.2013 Supp. 21–5405 is the killing of another committed recklessly. Such a charge is appropriate when the act resulting in death was intentional, but the defendant did not intend to kill the victim. See McCullough, 293 Kan. at 978–79.
Alvarez' argument is predicated upon an isolated portion of the prosecutor's closing argument. Just prior to the statement at issue, the prosecutor told the jury “there's no reason to consider any lesser included offenses” and then went on to discuss the definition of intentionally, stating:
“Intentionally means a defendant's desire or conscious objective to cause the result complained about by the State. And that's the intent to kill. At that moment it was [Alvarez'] conscious objective or desire. Maybe he didn't wish he did it now, but that's not what we're talking about. We're talking about that moment in time. You can regret it, you can feel bad about it. But at that moment what reason did he have to ... thrust that knife in a situation that would a reasonable person feel at that time they needed to use lethal force to go from what, from really what it was is a, not even a fist fight. It's a grappling situation, at best, is what the evidence is.”
The district court had issued the definition of intentionally from PIK Crim. 4th 51.150 in conjunction with the instruction on second-degree intentional murder prior to the parties' closing arguments: “A defendant acts intentionally when it is the defendant's desire or conscious objective to cause the result complained about by the State.”
Alvarez premises his argument on the prosecutor's follow-up comment attempting to apply the definition of intentionally to the facts of this case. The prosecutor stated:
“Reckless. Is it reckless? Were these acts reckless, or were they intentional? The State submits to you that they are intentional acts. There was, based upon the evidence, a conscious decision to reach for that pocket knife that Mr. Alvarez said he knew he had. That there was a conscious decision to unfold that knife. There was a conscious decision to display that knife. There was a conscious decision to jab that knife into the stomach of Mr. Frank. Those are intentional acts. The State would argue to you they're not reckless acts; they're intentional acts.” (Emphasis added.)
Alvarez contends the prosecutor's comment stands in direct contradiction to the recent clarification in State v. Deal, 293 Kan. 872, 885, 269 P.3d 1282 (2012), that culpability for second-degree murder focuses on whether a killing was done intentionally or unintentionally, not on whether a deliberate or voluntary act caused the death. See McCullough, 293 Kan. at 978–79.
The record does not support any claim that the prosecutor's comment oversimplified the required analysis or suggested that a juror's mere belief that the intentional acts resulting in Frank's death in and of itself automatically foreclosed any conclusion that Alvarez unintentionally or recklessly killed Frank. It shows instead that the State spent the majority of its closing argument arguing the killing of Frank was intentional and only mentioned the lesser-included offenses in passing. The record indicates the prosecutor had accurately defined intentionally. Even Alvarez concedes on appeal that “the State did an excellent job of explaining to the jury that ‘intentional’ in intentional second-degree murder meant ‘intended to kill.’ “ Then, the prosecutor, after appealing to the jury's sense of reasonableness when confronted with the same situation, indicated that reaching for the pocket knife, unfolding and displaying the knife to Frank, and then stabbing him supported Alvarez' “conscious decision” to kill Frank. The prosecutor was simply arguing those same facts could be used to support culpability.
This statement does not constitute prosecutorial misconduct as it falls clearly within the wide latitude afforded to prosecutors in discussing the evidence. Thus, we need not engage in any further “plain error” analysis.
Cumulative Error
In Alvarez' final issue, he argues that cumulative errors occurring during his trial entitle him to a new trial.
Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Burns, 295 Kan. 951, 960, 287 P .3d 261 (2012), overruled on other grounds by State v. King, 297 Kan. 955, 305 P.3d 641 (2013). However, “[c]umulative error will not be found when the record fails to support the errors raised on appeal by the defendant. [Citations omitted.]” State v. Cofield, 288 Kan. 367, 378, 203 P.3d 1261 (2009). Because we found no errors, Alvarez' cumulative error claim is without merit.
Affirmed.