IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 126,844
STATE OF KANSAS,
Appellee,
v.
ROBERT EDWARD SMITH,
Appellant.
SYLLABUS BY THE COURT
1.
In assessing whether a delay before trial violates a defendant's constitutional right
to speedy trial, courts typically consider four factors: (1) the length of delay; (2) the
reason for delay; (3) the defendant's assertion of the speedy trial right; and (4) prejudice
to the defendant. But if the length of delay is not presumptively prejudicial, courts do not
consider the remaining three factors.
2.
In assessing presumptive prejudice, the passage of time alone is not dispositive.
Instead, courts must consider whether the delay is reasonable given the complexity of the
case in light of the case's peculiar circumstances.
3.
To preserve for appeal an objection to a district court's ruling that a party may not
present a particular theory of defense to the jury, the accused need not lay out their exact
strategy so long as they explain their theory with reasonable clarity, and show the court
sufficient evidence they intend to present in good faith support of that theory.
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4.
In excluding evidence, a district court violates a criminal defendant's fundamental
right to a fair trial if the court excludes relevant, admissible, and noncumulative evidence
that is an integral part of the theory of the defense.
5.
K.S.A. 22-3201(e) states that the court may permit a complaint or information to
be amended at any time before a verdict or finding if no additional or different crime is
charged and if substantial rights of the defendant are not prejudiced. A two-part analysis
determines whether an amendment prior to submission of the case to the jury may be
permitted: (1) Does the amendment charge an additional or different crime? (2) Are the
substantial rights of the defendant prejudiced by the amendment?
6.
When a defendant challenges their criminal history score at sentencing, the State
bears the burden of proving that score by a preponderance of the evidence. In the face of
such a challenge, the presentence investigation report is no longer sufficient to carry the
State's evidentiary burden.
7.
K.S.A. 21-6810(d)(9) provides that a prior conviction of a crime defined by a
statute that has since been determined unconstitutional by an appellate court shall not be
used for criminal history scoring purposes. Under the plain language of this subsection, it
is irrelevant whether a subsequent appellate court reversed or repudiated an appellate
court's holding that a statute is unconstitutional.
Appeal from Sedgwick District Court; JEFFREY L. SYRIOS, judge. Oral argument held October 29,
2024. Opinion filed February 14, 2025. Convictions affirmed, sentence vacated, and case remanded with
directions.
2
Lindsay N. Kornegay, of Kansas Appellate Defender Office, argued the cause, and Samuel D.
Schirer, of the same office, was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Kris W. Kobach, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
WILSON, J.: Following a mistrial and subsequent retrial, Robert Edward Smith
directly appeals his convictions for first-degree felony murder, aggravated burglary,
attempted aggravated robbery, two counts of aggravated assault, and criminal possession
of a weapon, which arose out of the 2016 home invasion and murder of Donna O'Neal.
Smith claims he was deprived of his constitutional right to speedy trial; he also alleges
prosecutorial error, two violations of his right to present a defense, an error in the district
court's decision permitting the State to file a mid-trial amendment to its information, and
cumulative error. Smith also claims that he is serving an illegal sentence because the
district court erroneously counted a 2003 criminal threat conviction as a person felony.
We affirm Smith's convictions but vacate his sentence and remand for resentencing.
FACTS AND PROCEDURAL HISTORY
In 2016, Donna O'Neal was working as a cook at the Sedgwick County Jail.
Steven King worked with her there; he also knew that Donna sold marijuana on the side.
Donna and King both knew Smith: King, from when they shared a cell together, and
Donna because Smith and his girlfriend, Nakia Johnson, lived in the same apartment
complex up until the summer of 2016. King also lived in that apartment complex for
about three months, up until the end of July 2016, when he was staying with his friend
Gary Black.
3
On the evening of October 8, 2016, Donna met with her son, Clifford O'Neal, and
her friend, Yeni Seleno, at her apartment in Wichita. The three planned to go out on the
town. But as they were getting ready for the evening, an armed man kicked in the front
door and demanded money and drugs. According to Seleno and Clifford, Donna acted
like she knew the man. Clifford got on the ground, as the man commanded, but Donna
charged the intruder and started wrestling him as he was "trying to get in [Donna's]
pockets"; Seleno "immediately" fled the apartment. According to Clifford—who
remained on the ground throughout—the ensuing struggle lasted "a couple minutes," and
ended when the intruder shot Donna multiple times. The intruder then fled the apartment.
Seleno and Clifford reunited and called 911 at 9:18 p.m. Donna died shortly
thereafter, having been shot three times by a .25 caliber weapon.
Police had little to go on, at first. Investigators located no useful surveillance
footage from the area around the apartments, and Seleno's and Clifford's descriptions
were relatively generic. Seleno said the intruder was "a mid-thirties-aged black male" of
"average height and average weight"; at trial, all she could say was that he was "not old."
Clifford described the attacker as a bald Black man of about 200 pounds, whom he had
never seen before.
The next morning, King learned of Donna's murder at work. King went to the
police to report that, several months before, Smith had proposed that the two of them rob
Donna. King wanted no part of the plan and warned Donna about it. Indeed, on June 30,
2016, Donna had sent Smith text messages that suggested she knew about the plan; Smith
apparently did not respond to Donna's messages.
4
After King provided this lead, the investigation focused on Smith. Smith's cell
phone data suggested that he was near Donna's apartment complex minutes after the
shooting before gradually moving towards the apartment Smith shared with Johnson.
Johnson had gone to her sister's house earlier in the evening of October 8; Smith
was at their apartment when she returned at about 10 p.m. Because Smith and Johnson's
relationship had been rocky in recent months, they did not say much to each other;
nevertheless, Johnson believed Smith was acting normally. Smith slept at their apartment
that night and stayed there until about 5 p.m. on October 9.
On the evening of October 9, Smith called his friend and fishing companion
Edward McDaniel. McDaniel picked Smith up, let him stay the night at his place, and
then drove him to Kansas City on October 10. McDaniel described Smith as oddly quiet
at the time, in contrast to their previous encounters. Cell tower data suggests that Smith's
phone arrived in Kansas City at least around noon on October 10.
Investigators searched Johnson's sister's house for Smith on October 9, telling her
that they believed Smith had shot someone. Johnson's sister called Johnson to complain
about the search.
After police searched Johnson's sister's house, Smith called Johnson several times
to apologize, indicate that he had messed up, and state that he needed to turn himself in to
the police—though he did not provide details. During one of these conversations,
Johnson asked Smith what he had done; Smith only responded that he "fucked up" and
would turn himself in. Johnson told Smith "they said that you shot somebody," and Smith
responded, "I fucked up, I fucked up, I'm sorry." During another call, Smith accused
Johnson of being with the police and trying to set him up; Johnson expressed that she was
5
trying to get Smith to understand what the police said he had done, and asked why he
kept calling her when there was nothing she could do.
Much later, investigators tested shell casings, Donna's fingernails, and Donna's
clothing for DNA. Investigators could not exclude Smith as a partial contributor to a
sample taken from Donna's shirt collar, with a 1-in-90 chance that the profile was from a
random, non-related person. Further, Smith's DNA could not be excluded from a sample
taken from Donna's pants pocket, with a 1-in-118,000 probability that the sample
belonged to a random unrelated person. At every sampled site where DNA was reportable
for comparison purposes, King was excluded as a contributor.
The State ultimately charged Smith with one count of felony murder, one count of
aggravated burglary, one count of attempted aggravated robbery, two counts of
aggravated assault, and one count of criminal possession of a weapon by a convicted
felon. Because of the parties' extensive pretrial litigation and the COVID-19 pandemic,
the case did not go to jury trial until July 12, 2021. King testified at this trial. The jury
was unable to reach a verdict, however, and the district court declared a mistrial.
The State conducted DNA testing after the mistrial. Between the parties' litigation
around this evidence and the COVID-19 pandemic, Smith's retrial was delayed to May 8,
2023. King died of natural causes in the interim; his testimony at the first trial was read to
the retrial jury over the defense's objection. The jury ultimately convicted Smith of all
charges.
Smith objected to his criminal history at sentencing. Smith argued that his 2003
criminal threat conviction should not be counted as a person felony, based on State v.
Boettger, 310 Kan. 800,
450 P.3d 805 (2019). The district court overruled Smith's
objection, reasoning that the United States Supreme Court's recent decision in
6
Counterman v. Colorado, 600 U.S. 66,
143 S. Ct. 2106,
216 L. Ed. 2d 775 (2023),
controlled.
Smith directly appeals.
ANALYSIS
The 21-month delay between Smith's initial trial and his retrial did not violate Smith's
Sixth Amendment right to speedy trial.
Smith first claims that the 21.5-month delay between his initial trial and his retrial
violated his Sixth Amendment right to speedy trial. He makes no similar claim as to the
delay before his first trial, however.
Smith raised this claim below, preserving it for appellate review. "As a matter of
law, appellate courts have unlimited review when deciding if the State has violated a
defendant's constitutional right to a speedy trial." State v. Shockley, 314 Kan. 46, 61,
494
P.3d 832 (2021).
Additional facts
Smith's first trial began on July 12, 2021, over four and a half years after the initial
charge. As part of Smith's defense, defense counsel argued that the State failed to present
any DNA evidence tying Smith to the crime. The district court declared a mistrial on July
19, 2021, after the jury failed to reach a unanimous decision.
At a status conference on August 4, 2021, the district court noted that "the State
has submitted a request for additional evidence, DNA, possibly cell phone records or cell
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phone testimony" and that defense counsel "may pursue BIDS request for expert services
on the cell phone matters." The court scheduled Smith's second trial to begin on January
24, 2022. A month after the status conference, the court granted the State's motion to
obtain saliva samples from Smith to compare his DNA with DNA found on Donna's shirt
and pants, although defense counsel indicated Smith would likely seek an independent
evaluation of the DNA if the results suggested a match.
On January 7, 2022, the court heard the State's motion to endorse Steven Hoofer as
a witness. Hoofer was a forensic examiner that would be drafting a report regarding
Smith's DNA, although, at the time of the hearing, the DNA results were not complete.
Defense counsel explained Smith "very well may need to talk to the Court about
additional time for a defense expert, if that is needed." The court observed the trial, which
was scheduled to begin in 17 days, was "coming up pretty quickly" and that counsel had
previously "talked about maybe the need to get a continuance after you see that to seek
expert advice or opinion or so forth." Further, the court suggested that, because of the still
unfinished DNA report, the trial date might need to be pushed out: even if the report was
completed before the January 2022 trial date, "I suspect the defense is going to need[]
adequate time to respond to it." Defense counsel partially agreed, noting that if the results
were inculpatory then "we probably would need to have it looked at," but if the results
excluded Smith, then they would be ready for trial.
On January 20, 2022, four days before the trial was scheduled to begin, the court
held a hearing on whether the defense was requesting a continuance. The State explained
the delays in testing:
"We tried this case back in January—excuse me—July of 2021. After that the
State did proceed with some DNA testing. It took a little bit because of the number of
comparisons we had to obtain, including the EMS personnel that were in contact with the
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victim at the time of her death. Those results were emailed to [defense counsel] last
Friday."
In order "to at least have an independent review conducted," defense counsel
planned to reach out to BIDS to see who would be available for testing—though he noted
that BIDS was backed up due to COVID-19, so it was unclear how long it might take.
The court asked Smith himself if he was requesting a continuance of the jury trial, and he
said he was. The court granted the continuance and scheduled a hearing for February 11,
2022.
On February 10, 2022, Smith filed a pro se "motion for reappointment of counsel."
The motion alleged "a break down in communication and disagreement with the defense
of the case." At the prescheduled hearing the next day, defense counsel explained he had
not yet been able to secure a DNA expert. The court denied Smith's motion for new
counsel and scheduled a status conference in 30 days.
Smith filed another pro se motion for new counsel on March 8, 2022. At a hearing
three days later, the court denied the motion and defense counsel explained that Smith
still did not have a defense expert. After speaking with other members of the defense bar,
counsel learned that all experts, including DNA experts, were "really backed up right
now and are pretty slow to get the information just because of their schedules." Based on
this, counsel suggested it would be "three to six months before we would be in a position
to even think about going to trial." Counsel also discussed Smith's constitutional speedy
trial right, explaining that he was unsure whether that right could be waived and noted the
primary inquiry was prejudice to the defendant. The court set a new trial date of October
24, 2022.
In the meantime, King died on April 11, 2022.
9
The court held another status conference on September 30, 2022. At this point,
defense counsel had identified an expert witness. Defense counsel told the court that
Smith agreed to request a continuance because "he would prefer that we have an expert
and that we continue to explore this possibility of having the expert testify for us." The
agreement was for the expert to conduct a "DNA case review" rather than retesting the
DNA sample. The court asked defense counsel to speak with the expert to determine how
long review would take and verify with BIDS that the costs would be covered. The court
kept the trial date and continued the case until October 13, 2022.
At the October 13 status hearing, BIDS had still not approved the expert's funding.
The court explained that if BIDS declined to pay for the expert, then the trial would begin
on October 24 as planned. If, on the other hand, BIDS paid for the expert or defense
counsel could not get an answer, then the trial would be continued.
Defense counsel ultimately moved for a continuance. The court granted the motion
and set a new trial date of May 8, 2023. Both Smith and defense counsel signed a
document, filed October 26, affirming a desire to continue the trial. In early November
2022, Smith sent a letter to the court arguing any DNA-related continuances should be
charged to the State.
On April 5, 2023, the State notified the district court that King had died.
On May 1, 2023, Smith, through defense counsel, filed a motion to dismiss based
on a constitutional speedy trial violation, which the district court later characterized as a
motion to reconsider its previous denial of the speedy trial claim Smith made before his
first trial. The motion did not discuss the time devoted to DNA analysis, but instead
focused on King's death.
10
The court held a hearing on several motions on May 4, 2023. Regarding speedy
trial, defense counsel argued King's death was prejudicial as he was the State's "key
witness," and the jury would not be able to read King's body language during cross-examination. Counsel also noted that the elapsed time would cause witnesses to have
memory problems. Further, defense counsel suggested the DNA delays were caused by
the State because the State failed to initially test the DNA prior to Smith's first trial. The
State replied that it was ready to try the case in January 2022, after it received its DNA
report, and King died several months later, meaning the State did not prevent a jury trial
that would have included King. The court denied the motion.
Smith's second trial began on May 8, 2023. At the trial, King's redacted testimony
from the first trial was read to the jury. Defense counsel again raised a speedy trial
argument following the close of the State's evidence. The court denied the request to
reconsider its prior ruling. Defense counsel also raised the constitutional speedy trial
issue in a postconviction motion for judgment of acquittal, which the court again denied.
Discussion
The Sixth Amendment to the United States Constitution and section 10 of the
Kansas Constitution Bill of Rights both provide a right to speedy trial. State v. Otero, 210
Kan. 530, 531,
502 P.2d 763 (1972). "It is . . . impossible to determine with precision
when the right [to a speedy trial] has been denied." Barker v. Wingo,
407 U.S. 514, 521,
92 S. Ct. 2182,
33 L. Ed. 2d 101 (1972). Instead, we have followed Barker in adopting a
four-factor balancing test: (1) the length of delay; (2) the reason for delay; (3) the
defendant's assertion of the speedy trial right; and (4) prejudice to the defendant. State v.
Ford,
316 Kan. 558, 561,
519 P.3d 456 (2022); State v. Hayden,
281 Kan. 112, 127,
130
P.3d 24 (2006) (observing this court adopted the Barker factors in Otero). "Because the
test requires a balancing, none of these factors is a necessary or sufficient condition for
11
finding a violation. Instead, we consider them together along with any other relevant
circumstances." State v. Owens, 310 Kan. 865, 869,
451 P.3d 467 (2019).
Our analysis begins and ends with the first factor: the length of delay. Smith's
challenge centers on the 21.5 months between the mistrial on July 19, 2021, and the
beginning of his second trial, on May 8, 2023.
Two inquiries guide our analysis. First, we must decide whether the relevant
interval "has crossed the threshold dividing ordinary from 'presumptively prejudicial'
delay." Doggett v. United States, 505 U.S. 647, 651-52,
112 S. Ct. 2686,
120 L. Ed. 2d
520 (1992). If the delay was not presumptively prejudicial, our analysis ends. Owens, 310
Kan. at 872-73. Second, if we find the delay presumptively prejudicial, we "must then
consider, as one factor among several, the extent to which the delay stretches beyond the
bare minimum needed to trigger judicial examination of the claim." Doggett,
505 U.S. at
652.
The 21.5-month delay here was substantial; under different circumstances, other
courts have deemed similar delays presumptively prejudicial. See, e.g., State v. Ish, 173
Idaho 930, ___,
551 P.3d 746, 759 (2024); United States v. Snyder,
71 F.4th 555, 577
(7th Cir. 2023), rev'd on other grounds
603 U.S. 1,
144 S. Ct. 1947,
219 L. Ed. 2d 572
(2024). But "whether the length of delay is presumptively prejudicial depends on the
peculiar circumstances of each case, and the mere passage of time is not determinative."
State v. Weaver,
276 Kan. 504, Syl. ¶ 3,
78 P.3d 397 (2003); see also Owens, 310 Kan. at
872. Instead, the analysis "is necessarily dependent upon the peculiar circumstances of
the case"; for example, "the delay that can be tolerated for an ordinary street crime is
considerably less than for a serious, complex conspiracy charge." Barker,
407 U.S. at
530-31. "[U]nder Barker, the overarching consideration in determining whether the delay
12
is presumptively prejudicial is whether the delay is reasonable given the complexity of
the case." Owens, 310 Kan. at 875.
Smith's crime, broadly speaking, was a drug-related attempted robbery that
escalated to a fatal shooting. This was more complex than an ordinary street crime like
Owens, for example, but less than the "complex" murder proceeding in State v. Mathenia,
252 Kan. 890, 895,
942 P.2d 624 (1997). Owens, 310 Kan. at 874. Even so, the lack of
direct evidence implicating Smith complicates matters significantly: Without eyewitness
testimony at the retrial, the State had to rely on circumstantial evidence like DNA testing
and cell phone records to prove Smith's involvement. Cf. Owens, 310 Kan. at 875 ("This
was a simple and straightforward case, and the nature of the evidence involved does not
justify a 19-month delay between Owens' arrest and trial.").
Nor can we ignore the events between trials. The State did not simply rest on its
laurels. Instead, the State tested various items for DNA and obtained DNA from various
individuals for comparison purposes. Once that analysis was complete, Smith worked
with a different expert to evaluate the findings. This process injected more complexity
into the already somewhat complex case.
In assessing presumptive prejudice, we are not concerned with who caused the
delays between the mistrial and the second trial; that analysis would fall under the second
Barker factor, if we were to reach it. See Owens, 310 Kan. at 874 (discussing State v.
Davis, 277 Kan. 309,
85 P.3d 1164 [2004], as an example of improper conflation of the
first and second Barker factors). But we cannot overlook either the State's difficulty in
obtaining DNA evidence or the defense's need to appropriately respond to it within the
overall complexity framework. Likewise, the delays in lab processing brought about by
the COVID-19 pandemic further complicated matters and, thus, impact our overall
analysis of what delay is reasonable given the circumstances.
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Ultimately, we conclude that the delay here was not presumptively prejudicial.
Instead, the delay was reasonable when viewing both the State's new evidence and
Smith's need to rebut that new evidence in light of the purely circumstantial case for
Smith's guilt—particularly viewed within the overall state of the world during and after
the COVID-19 pandemic, which necessarily slowed all testing down.
Because we find the delay was not presumptively prejudicial, we reject Smith's
claim that he was deprived of his constitutional right to speedy trial, without considering
the remaining Barker factors. See Owens, 310 Kan. at 872-73.
The prosecutor did not err during closing arguments.
Smith argues the prosecutor committed three errors during closing arguments: the
prosecutor's comments about Clifford's failure to identify Smith as his mother's killer, the
prosecutor's argument that a not-guilty plea was not a declaration of innocence, and the
prosecutor's remarks that, according to Smith, improperly diluted the State's burden of
proof.
We apply a two-step analysis when reviewing claims of prosecutorial error. First,
we consider whether the prosecutor exceeded the wide latitude prosecutors are given to
conduct the State's case in a manner that does not offend a defendant's constitutional right
to a fair trial. State v. King, 308 Kan. 16, 30,
417 P.3d 1073 (2018). This wide latitude
extends to statements made during voir dire, opening statements, and closing arguments.
We do not consider any statement in isolation, but rather look to the statement's context
to determine whether error occurred. State v. Timley,
311 Kan. 944, 949-50,
469 P.3d 54
(2020).
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Second, if we find error, the State must demonstrate beyond a reasonable doubt
that the error did not affect the trial's outcome considering the whole record, meaning
"there is no reasonable possibility that the error contributed to the verdict." State v.
Blevins, 313 Kan. 413, 428,
485 P.3d 1175 (2021); King, 308 Kan. at 30. We may
consider the district court's jury instructions and the strength of the evidence against the
defendant in determining whether any prosecutorial error is harmless. Blevins, 313 Kan.
at 436-37. But while the strength of the evidence may inform our inquiry, it is not our
primary focus; prejudice may be found even in strong cases. State v. Sherman,
305 Kan.
88, 111,
378 P.3d 1060 (2016) (citing United States v. Socony-Vacuum Oil Co.,
310 U.S.
150, 240,
60 S. Ct. 811,
84 L. Ed. 129 [1940]). A contemporaneous objection is not
required to preserve claims of prosecutorial error for appellate review, although we may
consider whether an objection was raised in our analysis of any alleged error. Timley, 311
Kan. at 949.
The prosecutor did not err in discussing Clifford's failure to identify Smith.
Smith first claims the prosecutor erred by arguing facts not in evidence as to
Clifford's identification of Smith as his mother's killer. Before addressing this argument,
we must first consider what transpired before and during Smith's first trial, which resulted
in a hung jury.
Clifford identified Smith as his mother's killer at the preliminary hearing. But
before the first trial, the defense moved to suppress Clifford's identification.
At the suppression hearing, Detective Michelle Palmer and Clifford both testified
about Clifford's identification. Palmer testified that she showed Clifford a six-photo array
the day after the shooting; Smith was included in this lineup because King had given his
name to police. Clifford was unable to identify the shooter at this first meeting.
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Around a month later, on November 7, 2016, Clifford contacted Palmer to say that
he could now identify the shooter after looking up Smith's photograph; they met the next
day, at which point Clifford identified Smith. Clifford told Palmer he learned Smith's
name from his mom's friends that she worked with. Palmer also learned Smith's name
from King.
The district court ruled that Clifford's identification was admissible. As the court
put it, Clifford's "methods and his motives, as well as his credibility, will most certainly
be vetted by way of cross examination from the defense."
During the first trial, Clifford testified that he was "100 percent sure" Smith was
his mother's killer. Clifford admitted that he was unable to identify Smith at first, but later
(after speaking with King) Clifford learned of Smith by obtaining his picture from an
online database. Clifford again testified that he showed this photograph to detectives
several weeks after Donna's shooting. Defense counsel impeached Clifford on his initial
failure to identify Smith as his mother's killer; counsel also questioned Detective Palmer
about Clifford's initial failure. And in closing, defense counsel thoroughly highlighted the
flaws in Clifford's identification for the jury. As counsel put it:
"[Clifford] did the thing none of us are supposed to do. He Googled it and he gets a
picture and now he is convincing himself that he knows who did this, but that's all tainted
and it's not supported by any other evidence."
In opening statements during the second trial, defense counsel discussed Clifford's
flawed identification at some length, including an attempt to undermine Clifford's
anticipated testimony that he was "100 percent" certain Smith was Donna's killer. But,
contrary to the defense's reasonable expectations, the State did not ask Clifford to identify
Smith, and thus there was no discussion of the photo lineup or Clifford's later
16
identification during the trial itself. Instead, during Smith's retrial, the prosecutor and
Clifford shared the following exchange:
"Q. The guy that you saw that night that came into the apartment, how long in this whole
thing would you say you got to look at his face?
"A. I seen his face the whole time. I will never forget the face.
"Q. To be fair, were you—you said you were laying facedown at parts. Right?
"A. Yeah.
"Q. So were you looking at him the whole time or were there interruptions?
"A. I wasn't looking at him the whole time when I was down on the ground, but, like I
said, the glance of looking at him."
But the prosecutor never asked Clifford to identify Smith as his mother's killer—a
concern defense counsel raised at the end of Clifford's testimony, to which the court
agreed it had "noticed." Defense counsel expressed concern that the prosecutor would try
to "bootleg" in Clifford's identification through a detective and asked that Clifford remain
subject to recall. After denying that he had any new discovery to provide, the prosecutor
replied: "The fact that I choose to put on or not put on or how I put on a piece of
evidence, subject to the rules of evidence, is still, I believe, within my discretion."
As the trial progressed, the State made no effort to supplement Clifford's
identification. Instead, during closing arguments, the prosecutor said:
"Clifford says a guy walked in and said give me the money and you get down. He
got down on the ground. You know, he ate some carpet, I guess the phrase would be. He's
laying there on the ground and he hears and he sees some things going on around him. He
17
says there was a tussle, I know I saw a tussle. He tells you that man's face is etched in my
brain.
"At some point somebody may ask you, well, why didn't he identify the defendant
as the killer. The only non-speculative, non-assuming, non-guessing answer is this: He
wasn't asked." (Emphasis added.)
After the district court overruled defense counsel's objection, the prosecutor then
said:
"You don't get to guess. You don't get to fill in the blanks and say, well, what
would he have said if asked. You may have heard some statements in opening statement
that related to that. You can't consider those because those are not evidence. Clifford
wasn't asked.
"Let me pause for a moment. Assume or hypothetically think of a different
situation. Instead of the man coming in with no mask on, a man comes in wearing a mask
with enough skin exposed to say this is a black male. They heard his voice and said that's
a black male. Nobody could identify him. Then what evidence do we have? You don't
need Clifford O'Neal to say it was the defendant once you follow the evidence, ladies and
gentlemen. You don't need Yeni to be able to identify who it was that committed the
aggravated assault against her and the murder of Donna. You may like to know what
would he say. Well, he wasn't asked. Don't speculate. Don't guess."
Following another overruled objection, the prosecutor went on:
"Well I'm not shifting any burden. I'm talking about the evidence, ladies and
gentlemen, the evidence. He wasn't asked. You cannot assume, period. That's the law."
Then, after a third denied objection, the prosecutor said:
18
"Okay. So let's bring it the other way. He would not have identified the
defendant. No, that's not supported by the evidence, right. That's what I'm talking about
here, ladies and gentlemen. Follow the evidence, not some guesses." (Emphasis added.)
Smith claims the prosecutor's comments suggested that Clifford would have
identified Smith, had he been asked to, and that the prosecutor thus "stepped outside the
boundaries of permitted argument to ensure that the jury only got half the story (the
incriminating half)" of Clifford's identification.
While we acknowledge the immediate intuitive appeal of Smith's argument, we
find no error here when reviewing the prosecutor's remarks in context. The prosecutor
was correct: the only certain reason Clifford did not identify Smith on the stand was
because he was not asked to make an identification at all. To say more would have gone
outside the evidence, and thus constituted error on its own.
Defense counsel took a risk in their opening statements by verbally anticipating
evidence the prosecution would present. When that evidence was not presented by the
prosecution, defense counsel's earlier discussion of Clifford's flawed identification in
opening statements provided fair justification for the prosecutor's warning against
speculation or guesswork. Consequently, we conclude the prosecutor's remarks did not
stray outside the wide latitude afforded to prosecutors and thus were not error.
The prosecutor did not err in arguing, as part of an objection, that a "not
guilty" plea was not a declaration of innocence.
Smith next claims the prosecutor erred by suggesting that Smith's not guilty plea
was not synonymous with a declaration of innocence. Smith's claim arises from the
following exchange during defense counsel's closing arguments:
19
"[Defense counsel:] Well, they're trying to say that Robert did this and they have
the burden of proof. Robert's pled not guilty, I didn't do this. So what do we do? well, the
starting point is we look at our—
"[Prosecutor]: Judge, I'm going to object to counsel inserting a statement by the
defendant that wasn't made in evidence.
"[Defense counsel]: Your Honor, we entered a plea of not guilty back in 2016.
"[Prosecutor]: That means the State has to prove it. It doesn't mean the
defendant has said anything.
"[The district court]: I understand. I understand. The jury has been instructed
about statements and arguments and remarks of counsel that are not evidence. I want
them to follow that instruction as well as all the instructions. Go ahead." (Emphasis
added.)
Smith points us to out-of-state authority suggesting that such remarks constitute
error because they "undercut the axiomatic principle that a defendant is presumed
innocent until proven guilty and need not declare or prove that he is innocent." But these
cases are distinguishable. Unlike United States v. Soto-Beniquez, 356 F.3d 1, 42 (1st Cir.
2003)—or the other cases Smith cites—the prosecutor's challenged comment here came
in reply to the defense's response to the prosecutor's objection, not as a component of the
prosecutor's closing argument itself. See also State v. Belgard,
410 So. 2d 720, 723-24
(La. 1982) (comments arose during voir dire); Rairdon v. State,
557 N.W.2d 318, 324
(Minn. 1996) (comments made during closing); State v. Wilder,
124 N.C. App. 136, 142-
43,
476 S.E.2d 394 (1996) (same); State v. Jensen,
308 Minn. 377, 379-80,
242 N.W.2d
109 (1976) (same).
In State v. Kahler, 307 Kan. 374, 383,
410 P.3d 105 (2018), we considered
whether a prosecutor's objection during the defense's closing ("even one based on an
20
erroneous application of law") constituted prosecutorial error. In rejecting this claim, we
concluded:
"that it is within the prosecutor's permissible latitude to object that the defense is about to
go beyond the admitted evidence in its summation to the jury. As we discuss below, the
district court's ruling on the prosecutor's objection may have been erroneous. But this fact
has no bearing on the determination of whether the objection itself was prosecutorial
error." Kahler, 307 Kan. at 383.
While we do not categorically hold that all comments made during objections are
exempt from the prosecutorial error paradigm, we recognize that the target of such
comments is the judge—not the jury. As recognized in Kahler, the district court's ruling
on an objection may be erroneous, but any such error does not catapult a prosecutor's
arguments in furtherance of the objection into the realm of prosecutorial error. Further,
the prosecutor's statement was correct: Smith had not said, "I didn't do this," by entering
a legal plea of not guilty. Nor did Smith testify, "I didn't do this," so defense counsel's
statement to that effect did not constitute evidence for the jury to consider. Again, we
find no error here.
The prosecutor did not dilute the burden of proof.
Smith next argues the following comments—made by the second prosecutor
during rebuttal—diluted its burden of proof:
"[D]efense counsel kept saying find reasons to doubt. Nowhere in these instructions does
it say you must scour to look for reasons to doubt. It is true the State from the very
beginning and throughout this whole process has the burden of proof. We have to prove
to you beyond a reasonable doubt that the defendant did these crimes. There's nothing in
these instructions saying you have to scour looking for doubts."
21
Because a prosecutor may err "'by making arguments that dilute the State's burden
of proof or attempt to define reasonable doubt,' . . . 'prosecutors embellish on the
definition of the burden of proof in criminal cases at their peril.'" State v. Thomas, 307
Kan. 733, 743,
415 P.3d 430 (2018). But we have not previously addressed statements
like the ones Smith challenges here, and, as with his previous claim, Smith supports his
argument solely with out-of-state authority.
Again, we find Smith's authority distinguishable. In each of Smith's cited cases,
the appellate courts found nonreversible error based on slightly different expressions of
the notion that a jury's task is to search for truth, not reasonable doubts. United States v.
Williams, 690 F.3d 70, 77 (2d Cir. 2012) ("'this is not a search for reasonable doubt. This
is a search for truth . . .'" nonreversible error because it failed to properly frame the
question for the jury); State v. Medina, 147 N.J. 43, 54,
685 A.2d 1242 (1996) (trial
court's instruction, "[w]hile it is your duty to give the defendant the benefit of every
reasonable doubt, you do not search for doubt, you search for truth" held nonreversible
error because it "improperly eases the State's burden" and because "the jury's duty is to
scrutinize the evidence and search for doubt"); State v. Berube,
171 Wash. App. 103,
120-21,
286 P.3d 402 (2012) ("'you search for the truth, not a search for reasonable
doubt'" non-reversible error because it "'impermissibly portrayed the reasonable doubt
standard as a defense tool for hiding the truth, and suggested that a jury's scrutiny of the
evidence for reasonable doubt is inconsistent with a search for the truth'"); People v.
Robinson, 83 A.D.2d 887, 887,
442 N.Y.S.2d 119 (1981) ("'You are not here to search for
reasonable doubt. You are here to search for the truth'" nonreversible error because it was
an "attempt . . . to subvert the law relative to reasonable doubt.").
But the prosecutor's remarks here are different. By tying his comments to the jury
instructions—which, indeed, did not instruct to "scour to look for reasons to doubt"—the
prosecutor did not misstate the law. Nor did the prosecutor tell the jury its job was to
22
"search for truth" and thus imply that reasonable doubt was incompatible with truth. We
thus find no error in the prosecutor's arguments.
The district court did not violate Smith's right to present a complete defense.
Smith next claims the district court violated his right to present a third-party
defense by preventing him from arguing that King was O'Neal's killer, or by preventing
him from introducing an arrest warrant stemming from a probation violation to explain
how certain comments Johnson attributed to him had been misconstrued. Both arguments
ultimately tie back to the district court's findings on relevance, including (1) that Smith
had no relevant evidence to suggest that King committed the crime, and (2) that the
probation violation warrant was irrelevant because there was no evidence Smith knew
about it at the time he made the statements to Johnson.
Standard of review
"[U]nder the state and federal Constitutions a defendant is entitled to present the theory
of his or her defense and that the exclusion of evidence that is an integral part of that
theory violates a defendant's fundamental right to a fair trial . . . . The right to present a
defense is, however, subject to statutory rules and case law interpretation of rules of
evidence and procedure. [Citations omitted.]" State v. Evans, 275 Kan. 95, 102,
62 P.3d
220 (2003).
We review de novo claims that a district court's ruling has interfered with a
defendant's right to present a defense. E.g., State v. Waldschmidt, 318 Kan. 633, 657,
546
P.3d 716 (2024); State v. Macomber,
309 Kan. 907, 921,
441 P.3d 479 (2019).
"To constitute error, the excluded evidence supporting the defense theory must be
relevant, noncumulative, and admissible. We review this type of alleged error de novo.
23
"Unless barred by statute, constitutional provision, or caselaw, 'all relevant
evidence is admissible.' For relevancy, there are two elements: materiality and
probativity. We review the former de novo and the latter for abuse of discretion. A court
abuses its discretion when no reasonable person could agree with its decision or if its
exercise of discretion is based on a factual or legal error. [Citations omitted.]"
Waldschmidt, 318 Kan. at 657.
But we review a district court's decision to exclude evidence based on the third-party evidence rule for abuse of discretion based on the "'totality of facts and
circumstances in a given case.'" State v. Tahah, 293 Kan. 267, 274,
262 P.3d 1045 (2011)
(quoting State v. Adams,
280 Kan. 494, 505,
124 P.3d 19 [2005]). See also State v. Carr,
300 Kan. 1, 197,
331 P.3d 544 (2014) ("[T]he appellate standard of review for a district
judge's ruling on a motion in limine invoking the third-party evidence rule is abuse of
discretion."), rev'd and remanded 577 U.S. 108,
136 S. Ct. 633,
193 L. Ed. 2d 535
(2016).
Preservation
The parties litigated both sub-issues below. But the State now argues that Smith
failed to preserve his claim as to King because the "defendant never proffered the exact
manner in which he wanted to 'argue' or 'suggest' King's guilt to the jury." The State
rhetorically asks, "Did counsel plan to make this suggestion in opening statement or
closing argument, or through his cross-examination of King or other witnesses?" But we
reject this framing, which requires far more specificity than we have historically required.
"When a motion in limine has been granted, the party being limited by the
motion has the responsibility of proffering sufficient evidence to the trial court in order to
preserve the issue for appeal. The purpose of a proffer is to make an adequate record of
the evidence to be introduced.
24
"The proponent of excluded evidence has the duty of making known the
'substance' of the expected evidence in a proffer. A formal offer of proof in question and
answer form is not required if an adequate record is made in a manner that discloses the
evidence sought to be introduced. Failure to make a proffer of excluded evidence
precludes appellate review because there is no basis to consider whether the trial court
abused its discretion. [Citations omitted.]" Evans, 275 Kan. at 99-100.
See also State v. Burnett,
300 Kan. 419, 431-33,
329 P.3d 1169 (2014) (distinguishing
adequate proffer that another person committed the crime from inadequate proffer that
the house was a "drug house" or that police found weapons there).
Here, defense counsel proffered the following facts:
• Smith and King "look an awful lot alike," have "similar builds," "their
weights are similar, their heights are similar, their facial features are
similar. They're both bald black men. They both fit the description given by
the eyewitness to 911."
• Donna was killed by a .25 caliber bullet, and King had admitted to an
earlier possession of a .25 caliber handgun.
• King had lived in the same apartment complex as Donna, was friends with
Donna, and knew that Donna sold drugs.
• King learned Donna had been killed the next day "when I came to work."
• The police "came and got [King] from work" to ask him about the tip he
gave to Donna about Smith's planned robbery.
• King was the one to tell Clifford that Smith had previously threatened
Donna.
The defense also explained its proposed theory: that King, who ostensibly
resembled Smith, committed the crime and attempted to deflect blame by accusing Smith.
25
And while the defense was ultimately able to present some of this evidence to the jurors,
the court's ruling still prevented them from tying it all together—which is the core of
Smith's complaint. We thus reject the State's position that, to obtain appellate review,
defense counsel had to lay out its exact strategy in exhaustive detail. It suffices that the
defense explained its theory with reasonable clarity and showed the court sufficient
evidence they intended to present in good faith support of that theory, which is the case
here.
The district court's exclusion of third-party evidence as to King.
Regrettably, "our caselaw on the admissibility of third-party evidence has not
always been a model of clarity." State v. Cox, 297 Kan. 648, 660,
304 P.3d 327 (2013).
But, at a minimum, third-party evidence "must 'effectively connect the third party to the
crime charged'" and "must reveal more than motive to be relevant." Tahah,
293 Kan. at
274 (quoting Adams,
280 Kan. at 505). "Mere speculation" and "baseless innuendo" are
insufficient. Cox,
297 Kan. at 660-61; Brown, 285 Kan. at 305. Conversely, evidence
linking another person directly to the commission of a crime is relevant and generally
should not be excluded. See generally State v. Marsh,
278 Kan. 520, 529-33,
102 P.3d
445 (2004), rev'd and remanded on other grounds
548 U.S. 163,
126 S. Ct. 2516,
165 L.
Ed. 2d 429 (2006), and vacated in part on other grounds
282 Kan. 38,
144 P.3d 48
(2006); Evans,
275 Kan. at 99-100.
The State's pretrial motion in limine asked the court to prevent the defense from
"presenting evidence, arguing or otherwise discussing" the theory that King was Donna's
killer. After reviewing the proffered facts and noting that nothing suggested King was
"there" on the night of the murder, the district court ultimately concluded that "I just don't
believe there's sufficient evidence. I just think based on the third party rule that the
evidence that I've heard that the defense wants to put forward is not relevant." And
26
although defense counsel complained that the court's ruling left him "at a loss" and with
no defense, the district court was unmoved. The district court later reaffirmed its rulings
as to the proposed defense regarding King at the retrial.
Smith argues that his theory hinged on King's "intimate" connection to the case
and thus "went much further than" mere resemblance. But none of the facts proffered
remotely suggest that King shot Donna—particularly since Clifford, who saw the shooter
and sought out King for information later, both (1) never asserted that King was the
culprit and (2) claimed that he had met King before Donna's death. In contrast, at the
second trial, Clifford testified that he "had never seen [the killer]" before, and at both
trials he testified that he did not know Donna's killer, but that Donna seemed to. This key
failure undermines the defense's claim that Smith and King apparently resembled one
another. Even so, nothing shows King was near Donna's apartment on the night of the
murder; on the contrary, King's testimony suggests he was living in a different apartment
at the time, after having parted ways with his old friend Black in August, two months
before Donna's murder. And no DNA evidence implicated King, either.
While Smith's proffered facts show King's roundabout connection to the crime,
they do not show his involvement in it—and, thus, are irrelevant to show King's identity
as Donna's true killer, since there is no evidence that the killer acted with an accomplice.
Instead, the purported connection here consists of "baseless innuendo" that would merely
confuse and distract the jury with "'speculations on collateral matters wholly devoid of
probative value relative to who committed the [crime].'" Brown, 285 Kan. at 303, 305
(quoting Marsh, 278 Kan. at 530-31). We find no error in the district court's decision.
27
The district court's exclusion of Smith's probation violation warrant.
Additional facts
During an interview with detectives on the afternoon of October 10, 2016—a day
and a half after Donna's murder—Smith's then girlfriend, Johnson, reported phone
conversations with Smith beginning October 9 and running into the morning before the
interview. Johnson reported that, on the evening of the murder itself and even through 5
p.m. on October 9, when he left the apartment, Smith was calm and acted like nothing
happened. But after police raided Johnson's sister's house, Johnson called Smith and
asked why the police were at her sister's house; Smith called Johnson back, and when
Johnson again brought up the raid, Smith kept saying, "I'm sorry, I'm sorry, I fucked up,
I'm sorry." Johnson told detectives Smith called her again later that night, saying, "I
fucked up, I'm sorry . . . I'm going to have to go turn myself in." The two had a similar
exchange on the morning of October 10.
But Smith never told Johnson exactly what happened. During at least one of the
conversations, Johnson asked Smith what he had done; Smith only responded that he had
fucked up and would turn himself in. The police told Johnson's sister that Smith had shot
somebody; Johnson told Smith "they said that you shot somebody" and Smith responded,
"I fucked up, I fucked up, I'm sorry." Johnson agreed with a detective's question that he
seemed to be acknowledging her statement "you shot somebody" with his answer. And
during one of the calls, Smith accused Johnson of being with the police and trying to set
him up; Johnson said that she was trying to get Smith to understand what the police said
he had done, and asked why he kept calling her when there was nothing she could do.
The State played Johnson's recorded interview for the jury during the second trial.
On the stand, Johnson testified that, over multiple conversations, Smith said "he was
28
sorry for ruining my life" and that "he didn't mean to F up my life." Johnson also testified
that Smith never told her what had happened; he just said he was sorry for ruining her life
and hurting her family.
Defense counsel asked if Johnson knew Smith was on probation, that he had not
kept up on his fines, and that he had had a "bad UA"; she testified that she did. But
Johnson did not know that there was a warrant out for Smith's arrest until after the
shooting. The defense brought up a warrant for Smith's arrest based on a probation
violation during Johnson's testimony, but was unable to introduce it. The defense tried
again during Detective Palmer's testimony, but the district court held that the defense had
not shown it was relevant because there was no evidence Smith knew about it when he
made the statements to Johnson. Regardless, during closing, defense counsel discussed
the probation violation as the basis for Smith's "turning himself in" comment.
Discussion
Smith argues that the probation revocation warrant explained what he meant when
he told Johnson that he had "fucked up" and apologized for "ruining [her] life," which the
State later argued was a confession. Smith claims the warrant was central to his claim of
innocence and that the district court violated his right to a fair trial by concluding that,
because the defense failed to show Smith was aware of it when he made the statements to
Johnson, it was irrelevant.
We are unpersuaded. When a district court permits a defendant to present a
defense but "simply exclude[s] one piece of [relevant] evidence," "a constitutional issue
is not at stake," and this court thus reviews for abuse of discretion. State v. Alderson, 260
Kan. 445, 461,
922 P.2d 435 (1996). Instead, a district court only "violates a criminal
defendant's fundamental right to a fair trial if the court excludes relevant, admissible, and
29
noncumulative evidence that is an integral part of the theory of the defense." (Emphasis
added.) State v. Banks, 306 Kan. 854, 865,
397 P.3d 1195 (2017); State v. King,
293 Kan.
1057, 1063,
274 P.3d 599 (2012). Moreover, "To constitute error, the excluded evidence
supporting the defense theory must be relevant, noncumulative, and admissible."
Waldschmidt, 318 Kan. at 657.
The warrant (which the district court admitted for appeal) was hardly integral to
Smith's defense. It was issued in March 2016 based on various probation failures,
including positive UAs and a failure to report in person. But the defense introduced
nothing to show that Smith knew that the warrant had been issued, much less to explain
why he would suddenly bring it up to Johnson seven months after its issuance in the
context of police searching her sister's home. Thus, we find merit in the district court's
explanation that Smith would have to show he knew of the warrant for it to be relevant.
Further, Johnson testified that she knew Smith was on probation at the time, knew
Smith had not paid his fines, and knew that he had a "bad UA." Johnson did not know
there was a probation violation warrant for Smith's arrest at the time, though she later
learned of it.
Because the warrant was not integral to the defense's case, the district court's
refusal to admit it becomes a matter of discretion. And without evidence that Smith was
specifically aware of this warrant—or why he would suddenly bring it up seven months
after its issuance—it is unclear how the warrant would either be material (i.e., have "'a
legitimate and effective bearing on the decision of the case and is in dispute'") or
probative (i.e. have "'any tendency in reason to prove a fact'"). State v. Boleyn, 297 Kan.
610, 622,
303 P.3d 680 (2013). We find no error here.
30
Even if the district court erred in permitting the State to amend its information before the
case was submitted to the jury on retrial, any error was harmless.
Smith next challenges the district court's decision to allow the State to amend its
information during the retrial "to allege a different elemental version of a criminal
possession of a weapon offense" than previously charged. Smith preserved this issue for
appeal.
Standard of review
Under K.S.A. 22-3201(e), "The court may permit a complaint or information to be
amended at any time before verdict or finding if no additional or different crime is
charged and if substantial rights of the defendant are not prejudiced." Appellate courts
review a district court's decision to allow an amended information for abuse of discretion.
State v. Donaldson, 279 Kan. 694, 712,
112 P.3d 99 (2005). Further, to the extent Smith's
argument requires statutory interpretation, the court's review is de novo. State v. LamiaBeck,
318 Kan. 884, 886,
549 P.3d 1103 (2024).
Discussion
"A two-part analysis determines whether an amendment prior to submission of the
case to the jury may be permitted: (1) Does the amendment charge an additional or
different crime? (2) Are the substantial rights of the defendant prejudiced by the
amendment?" State v. Matson, 260 Kan. 366, 370,
921 P.2d 790 (1996). Smith focuses on
the first part of the analysis, maintaining that count six of the second amended
information charged a new crime because the elements were different than that of the
previous count six. Smith further argues that, because the district court permitted the
amendment, it forced the defense to enter an unnecessary stipulation that would have
31
made it difficult for the jury to "cabin[] their consideration of an accused's prior crime for
strictly proper purposes" and was thus "highly prejudicial." But Smith makes no
argument under the second half of the analysis, i.e., that the amendment prejudiced his
substantial rights; he merely claims any error was not harmless because of the stipulation
rendered necessary by the court's decision allowing the amendment.
As the defense highlighted below, the distinction between the amended
information and the second amended information lies in the final lines of count six:
"[T]o-wit: Possession of Marijuana with Intent to Sell, pursuant to KSA 65-4163(a)(3)
on the 23rd day of January, 2012, in the Eighteenth Judicial District Court, under Case
No. 2009CR3371, and was found to have been in possession of a firearm at the time of
the commission of the crime." (Emphasis added.)
"[T]o-wit: Possession of Marijuana with Intent to Sell, pursuant to KSA 65-4163(a)(3),
on the 23rd day of January, 2012, in the Eighteenth Judicial District Court, under Case
No. 2009CR3371, and was found not to have been in possession of a firearm at the time
of the commission of the offense, and has not had the conviction expunged or been
pardoned for such crime." (Emphasis added.)
The first amended information listed the statutory basis for the charge as K.S.A.
21-6304(a)(1); the second amended information listed K.S.A. 21-6304(a)(3)(A).
Smith argues that, because the elements of the two charges are different, they
constitute different crimes. While Smith cites no authority mandating this approach in the
context of mid-trial amendments to charging documents, he argues the Mathis v. United
States, 579 U.S. 500, 511-12,
136 S. Ct. 2243,
195 L. Ed. 2d 604 (2016), and Apprendi v.
New Jersey,
530 U.S. 466,
120 S. Ct. 2348,
147 L. Ed. 2d 435 (2000), definition of
"'crime' ought to apply" to K.S.A. 22-3201(e). But see State v. Lowe, No. 110,103,
2015
WL 423664, at *3 (Kan. App. 2015) (unpublished opinion) (although amendment
32
changed the elements the State was required to prove, the amendment did not charge a
new crime because it "only changed the theory that would support the charge for
trafficking in contraband in a correctional institution") (citing State v. Starr, 259 Kan.
713, 720,
915 P.2d 72 [1996]).
We assume without deciding that Smith has shown that the elements of the two
count sixes are different. We further assume without deciding that this makes the new
count six a "different crime." Smith argues that, at a minimum, a finding of error here
would require reversal of Smith's conviction for criminal possession of a weapon, and at
most requires reversal of all his convictions. We disagree.
We have not previously considered whether an error under K.S.A. 22-3201(e) can
be harmless when a mid-trial amendment to an information or complaint charges a new
or different crime. Our older caselaw suggests that it cannot. See, e.g., State v. Wilson,
240 Kan. 606, 608-09,
731 P.2d 306 (1987), overruled by State v. Dunn,
304 Kan. 773,
375 P.3d 332 (2016); State v. Scherer,
11 Kan. App. 2d 362, 369,
721 P.2d 743 (1986);
State v. Hoover, No. 65,888,
1991 WL 12018514, at *2 (Kan. App. 1991) (unpublished
opinion). But this caselaw turned on a point we have since repudiated: the notion that a
charging document confers subject matter jurisdiction on a court. As we have clarified,
district courts do not draw their subject matter jurisdiction from charging documents.
Dunn,
304 Kan. at 811.
Rather than the older focus on subject matter jurisdiction, our concern with a mid-trial amendment under K.S.A. 22-3201(e) turns on due process notions of notice and
fundamental fairness, along with double jeopardy. Cf. State v. Rasch, 243 Kan. 495, 497,
758 P.2d 214 (1988). In many cases, these concerns would be fatal to a mid-trial
amendment. But not so here. Cf. Lowe,
2015 WL 423664, at *3 (noting circumstances in
which an amendment to an information does not interfere with a defendant's ability to
33
defend against the charge, including "when the evidence is the same under the original
information and the amendment," "when the defendant has always been aware of the
evidence supporting the amendment," and "when the defendant can keep the same
defense under the amendment"). Here, the State's amendment to count six merely charged
the underlying theory of criminal possession of a firearm to comport with evidence that
both parties had access to all along—including throughout Smith's first trial, where
neither of them apparently caught the discrepancy. Further, Smith did not argue below—
and does not argue now—that the amendment prejudiced his substantial rights. He has
thus waived any such argument. E.g., In re Adoption of T.M.M.H., 307 Kan. 902, 912,
416 P.3d 999 (2018).
Consequently, we find any error harmless. While Smith complains that the
amendment forced him into an unnecessary stipulation—a distinct claim from the
statutory test of prejudice to his substantial rights owing to the amendment itself—we
conclude that the stipulated conviction could have had little impact on the jury's
assessment of the evidence before it. True, Smith's prior crime involved drugs, and the
State's theory of his current crimes centered on an attempted drug-related robbery. But
Smith's prior conviction—possession of marijuana with intent to distribute—was not one
involving violence and would not have suggested to the jury that Smith was particularly
likely to commit the charged crimes here, particularly because the parties' new stipulation
expressly noted that Smith "was not found to be in possession of a firearm at the time of
the prior crime." This stipulation would have had even less impact on the jury's
assessment of the evidence than the stipulation the parties entered at the first trial, which
said, among other things, "the defendant was found to be in possession of a firearm at the
time of the prior crime." (Emphasis added.) Thus, even assuming error, any error was
harmless.
34
Cumulative error did not deprive Smith of a fair trial.
Smith briefly argues that cumulative error deprived him of a fair trial.
"Cumulative trial errors may require reversal when, under the totality of the
circumstances, the combined errors substantially prejudice a defendant and deny a fair
trial. The cumulative error rule does not apply if there are no errors or only a single error.
[Citations omitted.]" State v. Lowry, 317 Kan. 89, 100,
524 P.3d 416 (2023).
Here, we have only assumed without deciding that one error occurred. The
cumulative error rule thus does not apply to afford Smith relief.
The district court erred in counting Smith's 2003 criminal threat conviction as part of
Smith's criminal history score.
Finally, Smith claims that the district court erred by including his prior criminal
threat conviction in his overall criminal history score and, thus, his sentence is illegal. We
agree.
Standard of review
Smith's challenge to his sentence requires us to interpret K.S.A. 21-6810(d)(9).
We exercise unlimited review over both interpretation of statutes and claims involving
illegal sentences. E.g., State v. Daniels, 319 Kan. 340, 342,
554 P.3d 629 (2024).
When a defendant challenges their criminal history score at sentencing, the State
bears the burden of proving that score by a preponderance of the evidence. K.S.A. 21-
6814(a)-(c); Daniels, 319 Kan. at 347-48. In the face of such a challenge, the presentence
35
investigation (PSI) report is no longer sufficient to carry the State's evidentiary burden.
319 Kan. at 347.
Discussion
K.S.A. 21-6810(d)(9) provides that "[p]rior convictions of a crime defined by a
statute that has since been determined unconstitutional by an appellate court shall not be
used for criminal history scoring purposes." As the majority recognized in State v.
Phipps, 63 Kan. App. 2d 698, 711,
539 P.3d 227 (2023), rev. granted
318 Kan. 1089
(2024), a "literal reading" of K.S.A. 21-6810(d)(9) implies that reckless criminal threat
convictions can never be included in a criminal history score "because at one point in
time, the Kansas Supreme Court determined that the reckless criminal threat statute
violated the First Amendment."
We now acknowledge as correct this "literal reading." In matters of statutory
interpretation, our prime directive requires us to give effect to the Legislature's intent, if
we can discern it. Bruce v. Kelly, 316 Kan. 218, 224,
514 P.3d 1007 (2022). Where the
Legislature's language is plain and unambiguous, our analysis ends—regardless of public
policy considerations or canons of construction. E.g., Woessner v. Labor Max Staffing,
312 Kan. 36, 44-45,
471 P.3d 1 (2020). But see Bruce, 316 Kan. at 224 ("even when the
language of the statute is clear, we must still consider various provisions of an act in pari
materia to reconcile and bring those provisions into workable harmony, if possible").
Our Legislature's direction was clear. If a prior conviction arose under a statute
"that has since been determined unconstitutional by an appellate court," it cannot be
counted in a criminal history score. Nothing in the plain language of the statute qualifies
this limitation by considering subsequent repudiations of an appellate court's holding that
a statute is unconstitutional.
36
As applied here, Boettger, 310 Kan. at 822, held that the portion of K.S.A. 2018
Supp. 21-5415 criminalizing reckless criminal threat is unconstitutional. This holding
further invalidated the corresponding portion of K.S.A. 2003 Supp. 21-3419, under which
Smith's 2003 conviction arose. And while the parties argue at length as to whether
Counterman v. Colorado, 600 U.S. 66, 81-82,
143 S. Ct. 2106,
216 L. Ed. 2d 775 (2023),
effectively overruled Boettger, this consideration is irrelevant under the plain language of
K.S.A. 21-6810(d)(9), which asks only whether an appellate court "has since" ruled the
statute unconstitutional—not whether that holding remains good law.
Because Smith raised this issue before sentencing, the State bore the burden of
proving that Smith's conviction arose under the portion of the statute that had not been
previously declared unconstitutional. K.S.A. 21-6814(c). The State presented no evidence
to carry this burden, instead focusing on whether Counterman overruled Boettger.
Because the State failed to carry its evidentiary burden that Smith's 2003 conviction arose
under a portion of the statute that remained constitutional after Boettger, the district court
erred in including Smith's 2003 conviction in his criminal history score. We thus vacate
Smith's sentences and remand to the district court for resentencing, with directions not to
include Smith's 2003 criminal threat conviction in Smith's criminal history score.
CONCLUSION
We affirm Smith's convictions, vacate his sentence, and remand the case for
resentencing.
37
