              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 111,044

                                      STATE OF KANSAS,
                                         Appellant,

                                               v.

                                     DANIEL P. PARKER,
                                        Appellant.


                               SYLLABUS BY THE COURT

1.
       A misstatement of the law during a prosecutor's closing argument can deny a
defendant a fair trial when the facts are such that the jury could have been confused or
misled by the statement.


2.
       It is improper to instruct or tell a jury that it must unanimously agree to acquit the
defendant of the charged offense before it can consider lesser included offenses.


3.
       It is proper to instruct or tell jurors to consider a defendant's guilt for lesser
included offenses only if they "do not agree" or if they "do not find" the defendant is
guilty of the charged offense. Such phrases do not require the jurors to unanimously
acquit the defendant of the greater charge before considering a lesser charge.


4.
       A prosecutor's comment directing the jurors to consider the defendant's guilt for
lesser included offenses only if they first find the defendant not guilty of the charged
                                                1
offense is an incorrect statement of the law because a guilty or not guilty verdict requires
unanimous agreement amongst the jurors. Such a statement is distinguishable from telling
a jury to move on to consideration of lesser included offenses only if they do not agree or
if they do not find the defendant guilty of the charged offense because these statements
presuppose a less than unanimous conclusion amongst the jurors.


        Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed March 6, 2015. The
judgment of the district court is affirmed.


        Peter Maharry, of the Kansas Appellate Defender Office, argued the cause, and Lydia Krebs, of
the same office, was on the brief for appellant.


        Barry K. Disney, assistant county attorney, argued the cause, and Barry Wilkerson, county
attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


        ROSEN, J.: The State charged Daniel P. Parker with felony murder and criminal
discharge of a firearm at an occupied building. Parker's case proceeded to trial where the
jury, in addition to receiving instructions on the charged crimes, received instructions on
second-degree unintentional murder and involuntary manslaughter as lesser included
offenses of felony murder. The jury ultimately found Parker guilty of felony murder and
criminal discharge of a firearm.


        Now on appeal, Parker argues that the prosecutor committed reversible
misconduct during closing arguments when he told the jurors that they were to consider
Parker's guilt for the lesser included crimes only if they first found him not guilty of
felony murder. Based on our prior decisions, we conclude that this statement was
erroneous because it suggested to the jurors that they had to reach a unanimous decision

                                                    2
(i.e., finding Parker not guilty of felony murder) before they could even consider Parker's
guilt for the lesser included crimes. But, due to the prosecutor also reciting the correct
legal standard during closing arguments and the overwhelming evidence establishing
Parker's guilt for felony murder, we conclude that the prosecutor's erroneous statement
does not constitute reversible misconduct. Accordingly, we affirm Parker's convictions
and sentence.


                                           FACTS

       Shortly after midnight on January 1, 2012, Parker had a verbal confrontation at a
Manhattan bar with members of the Assassin Street Rydaz Motorcycle Club (MC). After
the altercation, Parker left the bar with his wife and drove to their apartment in Junction
City. Parker eventually left the apartment and drove to the MC's clubhouse in Manhattan
where the MC was having a party. While sitting in his car, Parker fired between 20 and
27 rounds at the clubhouse with his AR-15 rifle. One of the rounds struck and killed
Frederick Beverly, who was standing outside the clubhouse at the time of the shooting.
Forensic evidence indicated that the bullet that struck Beverly may have ricocheted off an
object before striking Beverly in the forehead.


       Ultimately, the State charged Parker with one count of felony murder (based on
the underlying felony of criminal discharge of a firearm at an occupied building) and one
count of criminal discharge of a firearm at an occupied building.


       In an interview prior to trial, Parker admitted to shooting at the clubhouse but
denied that he intended to shoot anyone. At trial, Parker testified that he drove to the
clubhouse and fired his rifle "in the direction near that building" but maintained that he
was not "aiming" his gun when he fired it.



                                              3
       The district court, in addition to instructing on the charged crimes, instructed the
jury on second-degree unintentional murder and involuntary manslaughter as lesser
included offenses of felony murder. Consistent with PIK Crim. 4th 68.080 (lesser
included offenses), the district court instructed the jury that it could find Parker "guilty of
murder in the first degree, murder in the second degree, involuntary manslaughter, or not
guilty" and that "[w]hen there is a reasonable doubt about which of two or more offenses
Defendant is guilty, he may be convicted of the lesser offense only." Additionally, the
district court instructed the jury at the beginning of the elements instruction on second-
degree unintentional murder that "[i]f you do not agree that the Defendant is guilty of
murder in the first degree, you should then consider the lesser included offense of murder
in the second degree." PIK Crim. 4th 54.140 (murder in the second degree). Similarly, as
a preface to the elements instruction on involuntary manslaughter, the district court
instructed the jury that "[i]f you do not agree that the defendant is guilty of second-degree
murder, you should then consider the charge of involuntary manslaughter." Finally, the
district court instructed the jurors that their "verdicts in this case must be unanimous."
See PIK Crim. 4th 68.010.


       During closing arguments, the prosecutor commented on how the jury was to
consider Parker's guilt in relation to the lesser included offenses:


       "One of the things that you heard is that you have [been] given lesser [includeds] in this
       case. The defendant is charged by the State with First-Degree Murder. A lesser included
       of that is second-degree murder, and a lesser included of second-degree murder is
       involuntary. It is very important though that you follow the instructions on how you are
       supposed to look at these. A lot of people think that a lesser included—that you just go
       back in the jury room and decide which one of these three crimes he's guilty of. Well the
       truth—the fact of the matter is that the State would submit that he is guilty of all of these
       crimes because they are lesser included. So if he is guilty of the first-degree murder,
       he's—because it's included also that he is guilty of involuntary and also guilty of second-

                                                     4
      degree. But here's the instruction that you need to make sure that you follow. Judge
      Stutzman has given you this instruction and it says, if you do not agree that the Defendant
      is guilty of murder in the first degree, then you should consider the lesser included
      offense of second-degree murder, and then of involuntary manslaughter. The point being
      that you only look at second degree and you only look at involuntary manslaughter if you
      have found the defendant not guilty of first-degree murder. So you start with first-degree
      murder and if he's guilty of first-degree murder then stop. You don't have to—you should
      not look at the lessers. Because if you find him guilty of first-degree murder, he's going
      to be guilty of the lessers. So you look at the first-degree murder, by the instruction of the
      Judge, and only if you do not agree that he is guilty of first-degree murder that you go on
      to the lessers." (Emphasis added.)


      During defense counsel's closing argument, he argued that the jury should return a
"just" verdict which, in counsel's opinion, would be finding Parker guilty of second-
degree unintentional murder. Defense counsel stated:


      "You can hold [Parker] accountable by your verdict. And you can show him that we
      listened to your case young man, and we thought about it, and we listened to everything,
      and we kept kicking around that word just, justice, and we thought about it some more.
      We tried to hammer out what was a just verdict. There's a count that exactly fits, even the
      language. Unintentionally. This clearly was. But recklessly. God was it. Under
      circumstances that show extreme indifference to the value of human life. Indeed. That is
      exactly this crime. Returning a verdict of murder in the second degree I submit to you is
      fair to everybody. It's a conviction for murder. The definition fits this. It shows Daniel
      Parker that again we heard you and in recognition of all that we heard, all of it, in
      consideration of everything, we find you guilty of murder in the second degree."


      During the State's rebuttal argument, the prosecutor addressed defense counsel's
just-verdict argument:


      "Your verdict has to be based on the law plus credible facts. You don't—it's not a
      smorgasbord where you just simply pick the one that is easy and fair to everybody. You

                                                    5
       pick the one that the law and the evidence direct you to. And yes, I would say that he is
       guilty of second-degree murder, he is also guilty of involuntary. Those all fit because
       they are lesser included. It's like, as an illustration, a lasagna has pasta and cheese in it
       and it is like saying if you eat lasagna that you are going to eat cheese and pasta. And if
       he is guilty of the first-degree murder, he is guilty of everything under it. So it doesn't
       help you to say find him guilty of second-degree murder because that's ignoring the law.
       You know you have to recall that the Judge says that you only get to second degree
       murder, you only look at the lesser if you find him not guilty of murder in the first
       degree." (Emphasis added.)


       The jury ultimately found Parker guilty of felony murder and criminal discharge of
a firearm at an occupied building. The district court sentenced Parker to a hard 20 life
sentence for the felony-murder conviction and a concurrent 59-month prison sentence for
the criminal discharge of a firearm conviction. Parker filed a timely notice of appeal.


                                   PROSECUTORIAL MISCONDUCT

       Parker argues that when the prosecutor told the jury during closing argument that
it was to consider the lesser included offenses only after finding him "not guilty of first-
degree murder," the prosecutor misstated the law—thus, committing misconduct—by
conveying to the jury that it must unanimously acquit him of felony murder before
considering his guilt for any lesser included offenses.


Standard of Review

       Appellate review of a prosecutorial misconduct claim based on improper
comments requires a two-step analysis. First, an appellate court decides whether the
comments at issue were outside the wide latitude a prosecutor is allowed when discussing
evidence. If so, there was misconduct. Second, if misconduct is found, an appellate court
determines whether the improper comments prejudiced the jury against the defendant and
                                                      6
denied the defendant a fair trial. State v. Bridges, 297 Kan. 989, 1012, 306 P.3d 244
(2013).


       A.      Were the Statements Improper?

       Prosecutors enjoy wide latitude in crafting closing arguments. State v. Scott, 271
Kan. 103, 114, 21 P.3d 516 (2001). "A misstatement of the law during a prosecutor's
closing argument can deny a defendant a fair trial when '"the facts are such that the jury
could have been confused or misled by the statement."' State v. Williams, 299 Kan. 509,
544, 324 P.3d 1078 (2014) (quoting State v. Phillips, 295 Kan. 929, Syl. ¶ 5, 287 P.3d
245 (2012)."


       With regard to lesser included offenses, K.S.A. 2013 Supp. 22-3414(3) states: "In
cases where there is some evidence which would reasonably justify a conviction of some
lesser included crime . . . the judge shall instruct the jury as to the crime charged and any
such lesser included crime." K.S.A. 2013 Supp. 21-5108(b) states: "When there is a
reasonable doubt as to which of two or more degrees of a crime the defendant is guilty,
the defendant shall be convicted of the lowest degree only."


       In State v. Trujillo, 225 Kan. 320, 324, 590 P.2d 1027 (1979), the defendant
complained that the district court, though instructing the jury on several lesser offenses of
the charged offense, erred by not sequencing them in descending order of severity or
providing guidance to the jury on "which lesser offense was the more serious." The
Trujillo court stated that in the interests of promoting an orderly method of considering
the possible verdicts, "a trial court should instruct on lesser included offenses in the order
of severity beginning with the offense with the most severe penalty." 225 Kan. at 324.




                                              7
       The pattern instructions reflect Trujillo's command. In addition to organizing
lesser included offenses by descending severity level, the pattern instructions recommend
placing a transitional statement at the beginning of the elements instruction for each
lesser offense. For example, when the facts warrant giving an instruction on second-
degree murder as a lesser included offense of first-degree murder, the pattern instructions
recommend placing the following statement at the beginning of the elements instruction
on second-degree murder: "If you do not agree that the defendant is guilty of murder in
the first degree, you should then consider the lesser included offense of murder in the
second degree." PIK Crim. 4th 54.140. Consistent with the pattern instructions, the
district court placed this language at the beginning of the elements instruction for second-
degree murder. Similarly, the district court prefaced the elements instruction for
involuntary manslaughter by instructing the jury that if it did "not agree that the
defendant is guilty of second-degree murder, you should then consider the charge of
involuntary manslaughter."


       In State v. Korbel, 231 Kan. 657, 661, 647 P.2d 1301 (1982), the defendant
claimed that the instructional language "if you cannot agree that the defendant is guilty"
coerced the jury into returning a verdict of guilty on the more severe charge. The court
rejected this argument, stating:


       "The words 'if you cannot agree' when used to preface an instruction on a lesser charge
       are not coercive and do not require the members of a jury to unanimously find the
       accused innocent of the greater charge before proceeding to consider a lesser charge. The
       words 'if you cannot agree' presuppose less than a unanimous decision and no inference
       arises that an acquittal of the greater charge is required before considering the lesser."
       231 Kan. at 661.


See also State v. Roberson, 272 Kan. 1143, 1153-55, 38 P.3d 715, cert. denied 537 U.S.
829 (2002), overruled on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647
                                                     8
(2006) (relying on Korbel to reject challenge to "if you do not agree" language prefacing
lesser offense element instructions; language did not require jury to reach unanimous
decision acquitting defendant of greater charge before considering lesser charges).


       Notably, in State v. Carter, 284 Kan. 312, 331-32, 160 P.3d 457 (2007), this court,
relying on Roberson, Korbel, and other cases, found that instructions directing jurors to
move on to consideration of lesser included offenses only if they "do not agree" or if they
"do not find defendant guilty" were not coercive and correctly stated the law.


       Based on Korbel and the statutory mandate requiring that a defendant be convicted
of a lesser crime "[w]hen there is a reasonable doubt as to which of two or more degrees
of a crime the defendant is guilty," see K.S.A. 2013 Supp. 21-5108(b), this court in State
v. Hurt, 278 Kan. 676, 682, 101 P.3d 1249 (2004), held that a prosecutor would be
misstating the law if he or she argued to jurors that all 12 of them had to agree that there
was reasonable doubt concerning the crime charged before they could even consider the
defendant's guilt for a lesser included offense. See also State v. Jones, 298 Kan. 324, 339,
311 P.3d 1125 (2013) (prosecutor misstated the law when she told jurors: "'[B]efore you
get all the way to this lesser excuse kind of homicide, voluntary manslaughter, . . . you
have to all agree that there's no premeditation'"; statement conveyed to "jurors that each
had to reject premeditation before a lesser included offense could be considered").


       The above statutes and caselaw show that it is improper to instruct or tell a jury
that it must unanimously acquit the defendant of the charged offense before it can
consider lesser included offenses. But, as this court's decision in Carter shows, directing
jurors to move on to consideration of lesser included offenses only if they do not agree or
if they do not find the defendant guilty of the charged offense is not coercive and
correctly states the law. See Carter, 284 Kan. 312, Syl. ¶ 14. The reason for this, as
explained in Korbel, is because the phrases do not require the jurors to unanimously
                                              9
acquit the defendant of the greater charge before considering a lesser charge. Korbel, 231
Kan. at 661.


       Based on the above analysis, the prosecutor's comments directing the jurors to
consider Parker's guilt for the lesser included offenses only if they first found him not
guilty of felony murder were incorrect statements of the law because a guilty or not guilty
verdict requires unanimous agreement amongst the jurors. See K.S.A. 22-3421; State v.
Cheek, 262 Kan. 91, 108, 936 P.2d 749 (1997) ("The authority for [instructing jurors that
their agreement upon a verdict must be unanimous] is based on the fundamental right of
any accused to a trial by jury, §§ 5 and 10 of the Kansas Constitution Bill of Rights, and
K.S.A. 22-3403, together with our statute requiring a unanimous verdict under K.S.A. 22-
3421."). Such a statement is distinguishable from telling a jury to move on to
consideration of lesser included offenses only if they do not agree or if they do not find
the defendant guilty of the charged offense because these statements presuppose a less
than unanimous conclusion amongst the jurors. Accordingly, the prosecutor's statements
were outside the wide latitude given to prosecutors in crafting closing arguments and,
thus, constitute misconduct.


       B.      Did the Prosecutor Commit Reversible Misconduct?

       Because we have concluded that the prosecutor's statements were erroneous, we
now determine whether the comments constitute reversible misconduct. This involves a
three-factor inquiry: (1) whether the misconduct was gross and flagrant; (2) whether it
was motivated by prosecutorial ill will; and (3) whether the evidence was of such a direct
and overwhelming nature that the misconduct would likely have had little weight in the
minds of jurors. No one factor is controlling. State v. Crawford, 300 Kan. 740, Syl. ¶ 3,
334 P.3d 311 (2014); Bridges, 297 Kan. at 1012; State v. Tosh, 278 Kan. 83, 93, 91 P.3d
1204 (2004). Before the third factor can ever override the first two factors, an appellate

                                             10
court must be able to say that the State can meet both the statutory harmlessness standard
stated in K.S.A. 60-261 and the constitutional standard stated in Chapman v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 (1967). Crawford,
300 Kan. at 740, Syl. ¶ 4; Bridges, 297 Kan. at 1012-13 (citing Tosh, 278 Kan. at 97).


       This court has noted that, as a practical matter, the result of the harmless error
evaluation depends on the outcome of the Chapman constitutional standard. "[B]oth the
constitutional and nonconstitutional error clearly arise from the very same acts and
omissions," and the constitutional standard is more rigorous. Bridges, 297 Kan. at 1015.
Thus, the State necessarily meets the lower statutory standard under K.S.A. 60-261 if it
meets the higher constitutional standard.


       With regard to the first factor—whether the misconduct was gross and flagrant—
this court considers whether the misconduct was repeated, was emphasized, violated a
long-standing rule, violated a clear and unequivocal rule, or violated a rule designed to
protect a constitutional right. State v. Marshall, 294 Kan. 850, Syl. ¶ 6, 281 P.3d 1112
(2012). In analyzing whether a prosecutor's misconduct was motivated by ill will, the
court considers whether "the misconduct was deliberate, repeated, or in apparent
indifference to a court's ruling." 294 Kan. 850, Syl. ¶ 7.


       Though the prosecutor made two incorrect statements of law regarding how the
jury was to consider Parker's guilt for the lesser included crimes, the prosecutor also
correctly told the jurors if they did not agree Parker was guilty of felony murder, then
they should consider whether Parker was guilty of the lesser included offenses. See
Korbel, 231 Kan. at 661 ("The words 'if you cannot agree' when used to preface an
instruction on a lesser charge are not coercive and do not require the members of a jury to
unanimously find the accused innocent of the greater charge before proceeding to
consider a lesser charge."). "Where a prosecutor makes both a misstatement of the law
                                             11
and a correct recitation of the applicable law in a closing argument, we have been loath[]
to characterize the misstatement as being gross and flagrant misconduct. [Citations
omitted.] Neither does such a situation support a finding of ill will." State v. Naputi, 293
Kan. 55, 62, 260 P.3d 86 (2011). Similarly, we do not characterize the prosecutor's
comments here as either gross and flagrant or the product of ill will. See Jones, 298 Kan.
at 339-40 (court refused to find that prosecutor's incorrect statement regarding jury's
consideration of lesser included offenses was gross and flagrant or motivated by ill will
because, prior to making improper comment, prosecutor correctly told jury: "[I]f you
cannot agree [on the existence of premeditation], only then do you go to second and
determine whether or not the State has proven second-degree murder").


       Finally, the third factor: Was the evidence of such a direct and overwhelming
nature that the misconduct would likely have had little weight in the minds of jurors? In
answering this question, the State, as the party "benefit[ting] from the prosecutorial
misconduct, bears the burden to establish beyond a reasonable doubt that the error did not
affect the defendant's substantial rights, i.e., there is no reasonable possibility the error
affected the verdict." State v. Inkelaar, 293 Kan. 414, 431, 264 P.3d 81 (2011); see, e.g.,
State v. Raskie, 293 Kan. 906, 918, 269 P.3d 1268 (2012) (finding prosecutor's
misstatement did not affect the outcome of the trial in light of the entire record).


       The evidence presented at trial showed that Parker committed a criminal discharge
of a firearm at an occupied building by "recklessly and without authority" firing his AR-
15 rifle multiple times at the MC's clubhouse while numerous people were inside. See
K.S.A. 2013 Supp. 21-6308(a)(1)(A). Because Beverly was killed during the commission
of this inherently dangerous felony, the evidence clearly established that Parker was
guilty of felony murder. See K.S.A. 2013 Supp. 21-5402(a)(2) and (c)(1)(O).
Accordingly, we conclude that there is no reasonable possibility that the prosecutor's
comments affected the verdict.
                                               12
       In passing, we note another reason for finding harmless the comments at issue
here: Prior to Parker's trial in August 2013, the legislature amended the first-degree
murder statute to state that there are no lesser included offenses of felony murder and that
this change applies retroactively to all pending cases. See K.S.A. 2013 Supp. 21-5402(d)
and (e). In State v. Todd, 299 Kan. 263, Syl. ¶ 4, 323 P.3d 829 (2014), this court held that
the 2013 amendment did not violate the Ex Post Facto Clause and, thus, could be
properly applied to all cases not yet final. Since Todd, this court on numerous occasions
has summarily rejected a defendant's contention that the district court erred by not giving
instructions on lesser included offenses of felony murder. See e.g., State v. Clay, 300
Kan. 401, 409, 329 P.3d 484 (2014) ("Based on Todd, we conclude Clay was not legally
entitled to either an unintentional second-degree murder instruction or an involuntary
manslaughter instruction as a lesser included offense of felony murder.").


       Based on K.S.A. 2013 Supp. 21-5402(d) and (e), the district court in this case
should not have instructed on second-degree unintentional murder or involuntary
manslaughter as lesser included offenses of felony murder because felony murder no
longer has lesser included offenses. Thus, the instructions were not legally appropriate.
Because Parker was not legally entitled to any instructions on lesser included offenses of
felony murder, he could not have been prejudiced by the prosecutor's comments
regarding how the jury was to consider his guilt for the lesser included crimes.


       Though we conclude that the prosecutor committed misconduct, the misconduct
did not prejudice the jury against Parker and deny him a fair trial. Thus, we affirm
Parker's convictions and sentence.




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