               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                         No. 112,513

                                     STATE OF KANSAS,
                                         Appellee,

                                               v.

                                  MATTHEW R. MCDANIEL,
                                       Appellant.


                               SYLLABUS BY THE COURT


1.
       A criminal defendant's right to be present at every critical stage of the proceedings
is guaranteed by both the United States Constitution and Kansas statute.


2.
       The right to be present at any critical stage of the proceedings encompasses any
stage of the trial when the jury is in the courtroom or when the defendant's presence is
essential to a fair and just determination of a substantial issue.


3.
       By articulating dissatisfaction with court-appointed counsel, a criminal defendant
triggers a district court's duty to inquire about that dissatisfaction. A district court abuses
its discretion if it becomes aware of such dissatisfaction but fails to conduct an inquiry.




                                               1
4.
        A party must do more than simply fail to object to a district court's proposed jury
instruction to risk application of the invited error doctrine as a bar to appellate review of
that instruction.


5.
        A jury instruction must always fairly and accurately state the applicable law. An
instruction that does not do so is legally infirm.


        Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, TERRY L. PULLMAN, and
WILLIAM S. WOOLLEY, judges. Opinion filed June 9, 2017. Affirmed.


        Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was
on the brief for appellant.


        Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.


The opinion of the court was delivered by


        BILES, J.: This is Matthew McDaniel's direct appeal of his felony-murder and
aggravated robbery convictions. The focus is on the district court's handling of
McDaniel's multiple pretrial requests for substitute counsel, one of which was ultimately
granted. We agree the district court erred when it refused McDaniel's initial request for a
new attorney without any inquiry. We also agree it was an error for the presiding judge to
make on-the-record observations about McDaniel's interactions with his attorney at a
time when McDaniel was not present. We discuss these missteps and the caselaw
concerning them, although we hold these errors were harmless. Accordingly, we affirm.


                                                     2
                        FACTUAL AND PROCEDURAL BACKGROUND


       Ronald Wilson died from two gunshot wounds to the head. Wichita police
investigated the death and questioned McDaniel. After initially denying involvement,
McDaniel eventually confessed that he, Kendall Gentry, and Christopher Brown had
planned to rob Wilson two days before the crime. He speculated the robbery's purpose
was to assist in covering a drug debt Brown owed because one of Wilson's relatives stole
drugs from Brown.


       McDaniel said the group went to Wilson's apartment and played video games until
Brown signaled and Gentry shot Wilson. McDaniel admitted going through Wilson's
pockets and finding a wad of cash and a cell phone. Gentry later counted about $1,000 in
cash. When McDaniel was arrested the morning after the crimes, he was carrying about
$350 in cash.


       The State charged McDaniel with felony murder and aggravated robbery. At trial,
McDaniel's confession to police was the State's primary evidence. McDaniel testified and
denied the robbery was planned and said he lied in his earlier police statements because
Brown and Gentry told him to and he was afraid of them. McDaniel called Gentry as a
defense witness, but Gentry testified it was McDaniel who told him about a plan to rob
Wilson and identified McDaniel as the shooter. Gentry admitted being present when the
killing occurred but denied participating in it. The jury convicted McDaniel, and he was
sentenced to consecutive terms of a hard 20 life imprisonment for the felony murder and
102 months' imprisonment for the aggravated robbery.


       McDaniel timely appeals, raising three challenges to his convictions. First, he
argues the district court deprived him of his right to be present at a critical stage of the
trial when, after McDaniel's preliminary hearing, the court made on-the-record
                                               3
observations about his interactions with his preliminary hearing counsel. Second, he
claims the court failed to inquire into that attorney's potential conflict of interest. Third,
McDaniel contends the felony-murder jury instruction prevented the jury from
considering whether McDaniel should have been acquitted because the killing was
completed before the underlying felony commenced.


       Jurisdiction is proper. See K.S.A. 2016 Supp. 22-3601(b)(3)-(4) (Supreme Court's
jurisdiction over a criminal case in which life sentence has been imposed and defendant
has been convicted of an off-grid felony).


       RIGHT TO BE PRESENT AND FAILURE TO INQUIRE INTO POTENTIAL CONFLICT


       Much of McDaniel's appeal focuses on his efforts to discharge his first appointed
attorney, Pamela Parker, who represented him at his preliminary hearing and for the
following three months. The district court then appointed new counsel. We discuss those
efforts and the district court's handling of McDaniel's requests first.


Additional Facts


       Prior to his preliminary hearing, McDaniel filed a pro se motion to dismiss the
case. In that motion, he made generalized complaints that his prosecution and detention
violated his rights under the federal and state constitutions. In early August 2012, Judge
Benjamin L. Burgess presided at McDaniel's preliminary hearing. When Parker entered
her appearance, she said McDaniel had just told her he wanted to move pro se for
replacement counsel and he objected to any further proceedings. She also informed the
court about McDaniel's pro se motion to dismiss the charges against him, "which I told
him I will not argue. So I don't know if the court wants to take up those matters before we
begin but I thought I would put the court on notice."
                                               4
          Judge Burgess asked if a written motion had been filed. Parker explained again
that McDaniel had filed a pro se motion to dismiss, which was not yet set for hearing.
She repeated that she had informed McDaniel she would not argue his pro se motion to
dismiss but had said McDaniel could. Judge Burgess responded,


          "Well, if at this juncture Mr. McDaniel has appointed counsel, there is no motion, and I
          have the matter on my screen right now, there is no filed motion that I've seen with
          regard to the other at issue—


                  "MS. PARKER: Oh, no, he just informed me about the motion to dismiss right
          now.


                  "THE COURT: And Mr. McDaniel is not allowed to act as co-counsel. Ms.
          Parker is a qualified, experienced attorney, so we will proceed."


          McDaniel started to speak, but the judge cut him off, saying: "Mr. McDaniel, I
don't need to hear from you. You have counsel, counsel speaks on your behalf. I don't
allow defendants to act as co-counsel. It's that simple."


          The hearing resumed. When Parker's turn came again to enter her appearance, she
stated:


          "Your honor, again, Mr. McDaniel would like to make an oral motion to have me
          removed from the case. I've explained that the Court has ordered him to file a written
          motion. He has a list of reasons he would like to address with the Court."


          Judge Burgess asked the State to respond. The prosecutor conceded it probably
would be more expedient to take up the oral motion for new counsel "because I don't


                                                       5
want to have to do the hearing a second time, so that's fine." The following exchange then
occurred:


                "THE COURT: Well, this is a preliminary hearing. It's not the trial. I don't know
       that there's any need to delay the case. I'm well familiar with Ms. Parker. I know that
       she's a very capable lawyer. And I see no reason to delay the proceedings for the purpose
       of preliminary hearing at this point.


                "So, Mr. McDaniel, if you wish to file a written motion—


                "MR. MCDANIEL: Sir—


                "THE COURT: —to—to have Ms. Parker removed from the case for ineffective
       assistance of counsel, for whatever reason you might have any legal basis for, you can do
       that but not today. It's too late.


                "MR. MCDANIEL: I understand. Can I please explain a little of what I have
       here?


                "THE COURT: Mr. McDaniel, the answer to that is no. I'm not going to allow
       that."


       The proceedings resumed, the State presented its evidence, and Judge Burgess
ordered McDaniel bound over for trial. At that point, the judge directed that the record be
closed and the court went into recess. The hearing transcript reflects McDaniel was no
longer present, but then Judge Burgess said, "I want to reopen the record as it pertains to
Mr. McDaniel just for a moment." The judge commented,


       "I just wanted to have the record reflect that during the course of the preliminary hearing
       I noted during the examination of [the witness] that there were conversations occurring
       between Mr. McDaniel and Ms. Parker. They were communicating, one to the other and

                                                    6
       back again. At one point I noted Mr. McDaniel had a smile on his face. And obviously
       I'm not aware of what the conversations were, but I think it becomes clear to me, at least,
       at this point that there is not a complete breakdown of communication."


       The judge invited Parker to respond and she said,


       "Your Honor, I guess I would just clarify, when I began my questioning with [the
       witness], I informed him that I had problems hearing him and it was through no fault of
       his own. It was, in fact, because, as the Court pointed out, my client was continuing to
       talk to me, although I had provided him a pen to write notes on. So it—that's the only
       clarification I would make as to—there is communication going on."


       Judge Burgess resumed,


       "Certainly I don't intend nor ever want to invade the privilege with regard to what
       conversation would occur, but I think it was fair to note there were conversations. Mr.
       McDaniel was speaking to you, you were speaking back to him, and it was a two-way
       conversation. So again, the only thought that occurs to me is just make a note of the fact
       there does not appear to be a complete break down [sic] of communication."


       Three weeks later, McDaniel filed a written pro se "Motion for Reappointment of
Counsel." That motion is not included in the record. In mid-September, Judge Terry L.
Pullman presided at a hearing on that motion. Judge Pullman summarized McDaniel's
allegations as: a lack of contact with Parker; Parker not allowing him to discuss or
prepare the defense, to view evidence, or to subpoena witnesses or evidence; the lack of a
working relationship with Parker; and that Parker had refused to raise his "legal actions"
with the court.


       After McDaniel presented his complaints, Judge Pullman denied the motion but
continued the trial date to give McDaniel additional time to work with Parker on trial
                                                    7
preparation. Judge Pullman advised that McDaniel was free to refile the motion if he
believed the situation did not improve. Seven weeks later, McDaniel acted on that
suggestion and filed another pro se motion for substitute counsel. That motion was
granted and a new attorney was appointed. We turn now to McDaniel's arguments on
appeal.


Right to Be Present at Critical Stages of the Proceeding Is Violated


       We first address McDaniel's claim that the district court deprived him of his right
to be present at critical stages of the proceeding at the preliminary hearing when it made
the record afterwards and outside of his presence. We agree there was an error but
conclude it was harmless. In doing so, we necessarily reject McDaniel's claim the error
was structural and requires reversal.


       Standard of Review


       Whether a defendant's right to be present at a critical stage of the proceedings has
been violated is a question of law subject to de novo review. State v. Davis, 284 Kan.
728, 730-31, 163 P.3d 1224 (2007). Similarly, whether an error is structural or whether it
may instead be declared harmless is a question of law. State v. Hill, 271 Kan. 929, 934,
26 P.3d 1267 (2001), abrogated on other grounds State v. Voyles, 284 Kan. 239, 160
P.3d 794 (2007).


       Discussion


       A criminal defendant's right to be present at every critical stage of the proceedings
is guaranteed by both the United States Constitution and Kansas statute. State v. Bolze-
Sann, 302 Kan. 198, 215, 352 P.3d 511 (2015). The constitutional right "emanates from
                                             8
the Sixth Amendment right to confront witnesses and from the right to due process
guaranteed under the Fifth and Fourteenth Amendments." Davis, 284 Kan. at 731. K.S.A.
2016 Supp. 22-3405(a) codifies the right and "'is analytically and functionally identical to
the requirements under the Confrontation Clause and the Due Process Clause of the
federal Constitution that a criminal defendant be present at any critical stage of the
proceedings.'" State v. Killings, 301 Kan. 214, 241, 340 P.3d 1186 (2015) (quoting State
v. Engelhardt, 280 Kan. 113, Syl. ¶ 2, 119 P.3d 1148 [2005]).


       A critical stage of the proceedings for the purposes of the right to be present
encompasses "'any stage of the trial when the jury is in the courtroom or when the
defendant's presence is essential to a fair and just determination of a substantial issue.'"
Killings, 301 Kan. at 241 (quoting Engelhardt, 280 Kan. 113, Syl. ¶ 2). In the latter
scenario, "'[t]he presence of a defendant is a condition of due process to the extent that a
fair and just hearing would be thwarted by his absence, and to that extent only.'" United
tates v. Gagnon, 470 U.S. 522, 526, 105 S. Ct. 1482, 84 L. Ed. 2d 486 (1985); see also
Davis, 284 Kan. at 731-32 (defendant's right to be present when the district court has a
conversation with a juror).


       But that right is not unqualified, and it does not exist when the defendant's
"'presence would be useless, or the benefit but a shadow.'" Grayton v. Ercole, 691 F.3d
165, 170 (2d Cir. 2012) (quoting Snyder v. Massachusetts, 291 U.S. 97, 106-07, 54 S. Ct.
330, 78 L. Ed. 674 [1934]). In addition, K.S.A. 2016 Supp. 22-3208(7) provides
defendants the "right to be present at a hearing on any motion," though this right might be
greater in scope than the constitutional right to be present. State v. Brownlee, 302 Kan.
491, 507-08, 354 P.3d 525 (2015) (declining to address whether every motion hearing is
critical stage of trial due to State's concession that defendant had right to attend hearing
from which he was absent).


                                              9
       This court has observed that the scope of the right to be present is


       "influenced by circumstances and context, i.e., a defendant does not have a right to be
       present at proceedings before the court involving matters of law . . . , at remand
       proceedings, . . . and when excuses from jury service and deferrals were determined prior
       to when jurors were assigned to a particular case. [Citations omitted.]" State v. Minski,
       252 Kan. 806, 815, 850 P.2d 809 (1993).


As we have summarized the right, it extends to "any stage of the criminal proceeding that
is critical to its outcome if the defendant's presence would contribute to the fairness of the
procedure." State v. Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000).


               "In determining whether the right extends to a particular proceeding apart from
       the trial itself, the Supreme Court has looked to the function presence would serve in the
       proceeding at issue. In particular, the Court has examined whether or not exclusion of the
       defendant interfered with the defendant's opportunity to test the evidence introduced
       against him, and whether or not it otherwise affected his opportunity to defend himself at
       trial." 6 LaFave, Israel, King & Kerr, Criminal Procedure § 24.2(a) (4th ed. 2015).


       McDaniel should have been present when Judge Burgess reopened the preliminary
hearing record to memorialize his observations regarding interactions between McDaniel
and Parker. The issue addressed at the proceeding bore on his opportunity to defend
himself at trial, and his participation was necessary to fairly resolve it.


       The State argues this was not a critical stage of the proceedings, noting Judge
Burgess had already bound McDaniel over for trial. That, of course, was the principal
business to be addressed at the preliminary hearing. In the State's view, the post-hearing
proceedings were "simply [to make] a brief record of [Judge Burgess'] observations." We
cannot accept this characterization.

                                                    10
       Judge Burgess said his purpose in reopening the case record was to "make a note
of the fact there does not appear to be a complete break down [sic] of communication."
There could only be one reason for doing so—to preserve the observation for others who
might later review whether McDaniel deserved a new attorney at the just completed
preliminary hearing. Indeed, this was prescient because the State relied on Judge Burgess'
observations during Judge Pullman's subsequent hearing on McDaniel's first written pro
se motion for new counsel, telling Judge Pullman that:


       "Judge Burgess also made a record of the fact that he observed the defendant throughout
       the hearing conversing with Ms. Parker. Ms. Parker conversing back with him, and that
       from Judge Burgess's observations, the two seemed to be working well together
       throughout that hearing together." (Emphasis added.)


       McDaniel responded to Judge Pullman that there was no interaction and that he
was only instructing Parker what to write down and when "the dude was telling lies." But
it was too late; McDaniel was shadowboxing with Judge Burgess about events that had
happened outside of McDaniel's presence—events that the State at least viewed as
relevant to Judge Pullman's determinations about who would be, or continue to be,
McDaniel's lawyer. Functionally, Judge Burgess was a witness at the hearing in front of
Judge Pullman. But because McDaniel was not present when Judge Burgess made the
record, he had no opportunity to confront Judge Burgess about his view of the facts.


       The post-hearing discussion also could be viewed simply as an extension of the
preliminary hearing, which most certainly was a critical stage of the proceedings. See
State v. Jones, 290 Kan. 373, 380, 228 P.3d 394 (2010) (holding preliminary hearing was
a critical stage of the prosecution at which defendant had right to represent himself
because at the hearing probable cause to proceed with trial was determined and testimony

                                                 11
to which both parties referred at trial was taken); see also K.S.A. 2016 Supp. 22-2902(3)
(requiring defendant's presence at preliminary examination). Either way, we hold that the
on-the-record remarks by Judge Burgess and counsel constituted a critical stage of the
proceedings.


      McDaniel's constitutional and statutory rights were violated when he was
excluded. Accordingly, we consider next whether this requires reversal.


      When violations of both statutory and federal constitutional rights arise from the
same acts or omissions, the appellate court must apply the more rigorous of the two
harmless error standards―the federal constitutional harmless error standard defined in
Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). State v.
King, 297 Kan. 955, 968, 305 P.3d 641 (2013); see, e.g., State v. Kleypas, 305 Kan. 224,
256-58, 382 P.3d 373 (2016) (applying the Chapman test to defective warrant issue
arising under Fourth Amendment); State v. Verser, 299 Kan. 776, 789, 326 P.3d 1046
(2014) (applying Chapman standard to violation of right to be present). Under the
Chapman standard, an error may be declared harmless only when


      "'the party benefitting from the error proves beyond a reasonable doubt that the error . . .
      will not or did not affect the outcome of the trial in light of the entire record, i.e., where
      there is no reasonable possibility that the error contributed to the verdict.'" Verser, 299
      Kan. at 789 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 [2011], cert.
      denied 565 U.S. 1221 [2012]).


      This court has recognized in the context of a district courts' ex parte
communications with jurors that a violation of the right to be present may be harmless.
See, e.g., Bolze-Sann, 302 Kan. at 216-17; Verser, 299 Kan. at 789-90; State v. Bowen,
299 Kan. 339, 357-58, 323 P.3d 853 (2014) (rejecting argument that communication with
jury outside defendant's presence is structural error). And the United States Supreme
                                                    12
Court has acknowledged more generally that a violation of the right to be present during
a critical stage of the proceedings can be harmless. Rushen v. Spain, 464 U.S. 114, 117-
19, 104 S. Ct. 453, 78 L. Ed. 2d 267 (1983) (reversing the Court of Appeals for the Ninth
Circuit's ruling that "an unrecorded ex parte communication between trial judge and juror
can never be harmless error").


       McDaniel argues the error was structural and therefore cannot be deemed
harmless. He relies on State v. Calderon, 270 Kan. 241, 13 P.3d 871 (2000). In Calderon,
the court declined to apply harmless error analysis when a trial court deprived a non-
English-speaking defendant of the right to be present during closing arguments at trial by
failing to provide an interpreter. 270 Kan. at 253-54. In declining to apply harmless error
analysis, the court noted "the defendant's behavior, manner, facial expressions, and
emotional responses, or their absence, combine to make an overall impression on the trier
of fact," and reasoned that the failure to provide defendant a meaningful presence during
closing arguments "implicates the basic consideration of fairness." 270 Kan. at 253.


       The court distinguished Calderon in State v. Mann, 274 Kan. 670, 682-83, 56 P.3d
212 (2002), holding harmless-error analysis applied when it dealt with the infringement
of the right to be present, i.e., the judge's ex parte communication with four jurors. The
Mann court held this "did not implicate a basic consideration of fairness or undermine the
function of a criminal trial." 274 Kan. at 683; see also State v. Lopez, 271 Kan. 119, 134,
22 P.3d 1040 (2001) (declining to declare structural error to defendant's absence when
prospective juror questioned in chambers because absence did not "implicate the basic
consideration of fairness or undermine the function of a criminal trial").


       "Errors are structural when they 'defy analysis by "harmless-error standards"'
because they 'affect[ ] the framework within which the trial proceeds.'" Jones, 290 Kan.
at 382 (quoting Arizona v. Fulminante, 499 U.S. 279, 309-10, 111 S. Ct. 1246, 113 L. Ed.
                                             13
2d 302 [1991]). The difference between Calderon and Mann was that the error in
Calderon both went to "a fundamental assumption of the adversary system that the trier
of fact observes the accused throughout the trial" and had an effect on the trial's outcome
that was "'necessarily unquantifiable and indeterminate,'" making it unamenable to
harmless-error's outcome-based analysis. See Calderon, 270 Kan. at 253 (quoting
Sullivan v. Louisiana, 508 U.S. 275, 282, 113 S. Ct. 2078, 124 L. Ed. 2d 182 [1993]).
The error in this case, i.e., McDaniel's absence during the brief discussion after his
preliminary hearing, does not fit that mold.


         Applying the Chapman standard, we hold the error was harmless beyond a
reasonable doubt. A similar situation was addressed in Campbell v. Rice, 408 F.3d 1166,
1172-73 (9th Cir.), cert. denied 546 U.S. 1036 (2005), in which a defendant's exclusion
from an in-chambers meeting about defense counsel's potential conflict of interest was
held to be harmless. The Campbell court noted the defendant failed to demonstrate he
was adversely affected by any alleged conflict and did not claim any other adverse effects
other than meritless ineffective assistance claims. 408 F.3d at 1170-71. Similarly,
McDaniel concedes in his brief that "it is difficult to assess whether these actions altered
the outcome of the trial." And at oral argument, McDaniel's counsel was again unable to
articulate how this misstep by Judge Burgess could have affected the trial's outcome.


         There is nothing in the record we can find to suggest this error could have affected
the trial's outcome. The conversation dealt solely with McDaniel's interaction with Parker
during the preliminary hearing, and she was later removed from the case well before trial.
The appearance docket suggests her removal occurred before pretrial motion practice
began—including a hearing during which the district court determined the admissibility
of McDaniel's statements to investigators, the key prosecution evidence at trial.
McDaniel's absence from the post-hearing discussion was harmless beyond a reasonable
doubt.
                                               14
Right to Conflict-Free Counsel is Not Violated


         McDaniel argues he is entitled to a new preliminary hearing and trial because he
"was repeatedly denied conflict-free counsel at his preliminary hearing" and because the
district court "ignored the obvious conflict of interest of Parker in her representation of
him." These arguments are not entirely clear, but it appears McDaniel believes an actual
conflict arose at the preliminary hearing when Parker said she would not argue
McDaniel's motion to dismiss and that the subsequent hearing on McDaniel's first motion
to discharge Parker confirmed a conflict of interest. We will approach the case on that
basis.


         Standard of Review


         McDaniel had a right to effective assistance of counsel during all critical stages of
his criminal proceedings under the Sixth Amendment to the United States Constitution.
And this carries "a correlative right to representation that is unimpaired by conflicts of
interest or divided loyalties." State v. Pfannenstiel, 302 Kan. 747, 758, 357 P.3d 877
(2015). The district court is charged with ensuring this right is honored, so when there is
an articulated statement of attorney dissatisfaction, it is the district court's responsibility
to inquire. See 302 Kan. at 760. "This duty of inquiry exists regardless of the remedy
sought as a result of the alleged conflict of interest, whether it be a new trial or new
counsel." 302 Kan. at 760.


         Whether the district court adequately discharges this duty is reviewed for an abuse
of discretion. See 302 Kan. at 760-61. That standard is well known.




                                               15
               "Judicial discretion is abused if judicial action is (1) arbitrary, fanciful, or
       unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
       (2) based on an error of law, i.e., the discretion is guided by an erroneous legal
       conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not
       support a factual finding on which a prerequisite conclusion of law or the exercise of
       discretion is based. . . . The defendant bears the burden of showing the court abused its
       discretion." State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013).


       The duty of inquiry may lead a district court to abuse its discretion in three ways:
(1) When the district court becomes aware of a potential conflict of interest but fails to
inquire at all, which is a decision based on an error of law—the error being the district
court's failure to fulfill a legal duty; (2) when the court is aware of the conflict, proceeds
to investigate, but fails to conduct an appropriate inquiry; and (3) when the court, after
being aware of the conflict, conducts an appropriate inquiry into the defendant's
expression of dissatisfaction with counsel but commits an abuse of discretion in deciding
whether to substitute counsel. 302 Kan. at 760-62.


       Discussion


       In this case, the district court abused its discretion by failing to inquire at the
preliminary hearing. This is best illustrated by the exchange when McDaniel asked, "Can
I please explain a little of what I have here?" Judge Burgess responded: "[T]he answer to
that is no." Judge Burgess cut off any dialogue after being told McDaniel wanted to move
for new counsel and objected to any further proceedings. This determination of error
requires us to consider what, if any, remedy is required.


       Our first step—identifying the conditions that must be present for the defendant to
obtain relief―depends on the type of ineffective assistance claim alleged. See State v.
Sharkey, 299 Kan. 87, 100, 322 P.3d 325 (2014) (discussing categories of ineffective
                                                     16
assistance of counsel claims and the appropriate tests enumerated in Mickens v. Taylor,
535 U.S. 162, 122 S. Ct. 1237, 152 L. Ed. 2d 291 [2002]). There are three possible
categories of claims.


       The first is deficient attorney performance. In these cases, a defendant is entitled
to relief upon satisfying the two-part test from Strickland v. Washington, 466 U.S. 668,
687, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, the defendant must demonstrate
the attorney's performance was deficient, which "requires showing that counsel made
errors so serious that counsel was not functioning as the 'counsel' guaranteed the
defendant by the Sixth Amendment." 466 U.S. at 687. Next, the defendant must
demonstrate the attorney's deficient performance prejudiced the defense, which
necessitates showing counsel's error was "so serious as to deprive the defendant of a fair
trial, a trial whose result is reliable." 466 U.S. at 687. In other words, the defendant must
show there is a reasonable probability the result would have been different but for
counsel's errors. 466 U.S. at 694. The Strickland test is the "'general rule'" governing
ineffective assistance claims. State v. Galaviz, 296 Kan. 168, 181, 291 P. 3d 62 (2012).


       The second is "an 'exception to the general rule,' known as the Cronic exception."
296 Kan. at 181. In this category of claims, the defendant suffers a "complete denial of
the assistance of counsel or the denial of counsel at a critical stage of a proceeding." 296
Kan. at 181 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L.
Ed. 2d 657 [1984]). These situations present "'"circumstances of [such] magnitude"'" that
"'the likelihood that the verdict is unreliable is so high that a case-by-case inquiry is
unnecessary.'" 296 Kan. at 181. Therefore, when this occurs "a defendant is 'spared . . .
the need of showing probable effect upon the outcome.'" 296 Kan. at 181.


       The third category involves circumstances when the defendant's attorney actively
represented conflicting interests. 296 Kan. at 181. This category "is more nuanced," and
                                              17
claims falling within it "'may'" present "'"circumstances of [such] magnitude"'" that the
"'likelihood that the verdict is unreliable is so high that a case-by-case inquiry is
unnecessary.'" 296 Kan. at 181-82 (quoting Mickens, 535 U.S. at 166). And this final
category is further divided into three subgroups, which the Galaviz court referred to as:
(1) the automatic reversal exception, (2) the adverse effect exception, and (3) the Mickens
reservation. In all these subgroups, defendants must establish that their attorney had an
active conflict of interest. As to the first two subgroups, the alleged conflicts are related
to the attorney's engagement in multiple, concurrent representations. 296 Kan. at 182. Put
in another way, "the attorney is simultaneously representing codefendants with
antagonistic interests in the same proceeding." Stovall, 298 Kan. at 376. The third
subgroup, the "Mickens reservation, arises in situations where a conflict is 'rooted in
counsel's obligations to former clients' or 'counsel's personal or financial interests.'"
Galaviz, 296 Kan. at 184.


       McDaniel argues his case fits the second, Cronic category, so he claims he has no
burden to show any adverse impact on the outcome to his case. For this he relies on
Sharkey, 299 Kan. 87, and State v. Prado, 299 Kan. 1251, 329 P.3d 473 (2014), because
he claims at the preliminary hearing Parker took "no effort to put forth his claims," failed
"to object to the court holding a hearing" outside his presence, and "spoke out against her
client."


       But McDaniel's case is distinguishable from Sharkey and Prado. In those cases,
the conflicts bore directly on counsels' abilities to represent the defendants' interests at the
critical stages of those cases that were in controversy. In Sharkey, defense counsel
represented the defendant at a hearing on pro se posttrial motions that asserted the
attorney was ineffective due to his attorney's conflict of interest, leaving defendant with
"effectively . . . no legal representation at the motions hearing." Sharkey, 299 Kan. at 101.


                                              18
The court remanded the case for a new hearing on the posttrial motions with conflict-free
counsel. 299 Kan. at 101.


       And in Prado, in which the court did not apply the Cronic exception, defense
counsel represented defendant at a motion to withdraw a plea founded on the defendant's
allegation that the attorney ineffectively advised him. See Prado, 299 Kan. at 1260. A
majority of the court concluded reversal was required without a further showing of
prejudice because the record demonstrated the actual conflict adversely affected counsel's
performance. 299 Kan. at 1260-61.


       In McDaniel's case, the record does not establish that McDaniel's briefly-
expressed desire for new counsel caused any conflict that bore directly on Parker's ability
to represent him during the preliminary hearing. At the subsequent hearing on his motion
for new counsel, Judge Pullman asked what discovery McDaniel believed Parker had
refused to give him, and McDaniel clarified that he had received discovery after he filed
the motion to remove Parker—though not everything he was looking for. McDaniel then
explained he had several witnesses who could corroborate his version of events and were
not called at the preliminary hearing, although he could not recite their names. Judge
Pullman described a preliminary hearing's purpose and why that "is not a great time to
produce defense witnesses," to which McDaniel acknowledged, "Right. Well, that sounds
good. That's understandable."


       Judge Pullman's inquiry also delved into McDaniel's claim that Parker had refused
to file "legal actions" focused on his motion to dismiss. McDaniel described the basis for
his motion as being "[m]y arraignment rights" and appears to have been curious why the
motion had not been taken up by the court. Parker explained, "What he meant was his
first appearance. That's what—we've discussed this issue and I've explained to him why I


                                            19
will not file the motion, but that's his issue." Parker later elaborated she was "not going to
file [the motion] because there was no merit to it"


       and that she had "done research. I've talked to the other attorneys in my office. I don't
       believe there's any merit or good faith basis to file that motion, and I've explained to him
       that I cannot file motions that are meritless. And I will not do so. So that's the
       disagreement on that."


       It is clear from this that Parker did not face a dilemma between advocating for
McDaniel against her own professional interests and advocating for herself against
McDaniel's interests at the preliminary hearing. The Cronic exception is not applicable,
so this case falls within Mickens' third category—cases in which it is alleged defendant's
counsel actively represented conflicting interests. And because this case does not involve
Parker's concurrent representation of codefendants, it is within the third subgroup, the
Mickens reservation.


       Relief for a trial court's failure to inquire into a potential conflict in Mickens
reservation cases hinges on an unsettled standard. See Galaviz, 296 Kan. at 184. But one
of two standards would apply. The first is the Strickland standard, under which relief
would not be granted unless the defendant could demonstrate both that the attorney's
performance was deficient and a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. See
Galaviz, 296 Kan. at 181, 184 (citing Mickens, 535 U.S. at 166, 176).


       The alternative is the Cuyler standard used in the adverse effect exception.
Galaviz, 296 Kan. at 184; see also Mickens, 535 U.S. at 165 (citing Cuyler v. Sullivan,
446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 [1980]). Under the Cuyler test, the
defendant must demonstrate counsel labored under an active conflict of interest that

                                                     20
affected the adequacy of the representation. Galaviz, 296 Kan. at 183-84. This test differs
from the Strickland standard in that "'prejudice will be presumed only if the conflict has
significantly affected counsel's performance—thereby rendering the verdict unreliable,
even though Strickland prejudice cannot be shown.'" 296 Kan. at 184.


       The State argues no remand is required because the hearing on McDaniel's first
motion establishes there was no conflict of interest between McDaniel and Parker and
because his second motion for substitute counsel was granted. We agree. To apply the
Cuyler standard, he must show "'both an actual conflict of interest and an adverse effect.'"
Mickens, 535 U.S. at 165. He does not meet this burden.


       McDaniel conflates "conflict" in the sense of disagreements with Parker with the
Sixth Amendment concept of "conflict of interest" in stressing Parker's lack of contact
with him, his own lack of trust in her, and her refusal to advocate his pro se motion based
on her belief it was frivolous. But in general, an actual conflict case arises when "counsel
breaches the duty of loyalty." Strickland, 466 U.S. at 692. The record does not reflect
such a breach occurred.


       At the hearing on the first written motion to discharge Parker, McDaniel alleged
only one way in which Parker's loyalties were divided, that she prioritized her other
clients' cases over his. Before denying the motion, the district court heard McDaniel's
complaints, Parker's explanation for the lack of contact, and Parker's statement that she
would spend all the time she believed was professionally necessary on the case.


       The record supports the trial court's implied conclusion that Parker's loyalty to her
other clients did not create a conflict of interest. McDaniel's complaints sounded more in
"deficient performance" than in "conflict of interest," and nothing in the trial court's
inquiry revealed a danger that Parker's obligations to her other clients would put her in a
                                              21
position to "contend for that which [her] duty to [McDaniel] require[d] [her] to oppose"
or vice versa. See Cuyler, 446 U.S. at 356 n.3 (Marshall, J., concurring in part and
dissenting in part).


       McDaniel also claims a conflict arose because Parker advocated against him when
she expressed her opinion on the merits of his pro se motion to dismiss the case based on
defects in his arraignment. But that motion was not before the court at the preliminary
hearing or the hearing on McDaniel's motion to discharge Parker. The court in
Pfannenstiel distinguished between "an attorney truthfully recounting facts and . . . an
attorney going beyond factual statements and advocating against the client's position"
during "the inquiry into whether a defendant has demonstrated justifiable dissatisfaction
with his attorney." Pfannenstiel, 302 Kan. at 766. Parker's explanation about her
disagreement with her client did not require that substitute counsel be appointed.


       The most McDaniel could say of the trial court's asserted failure to inquire into the
disharmony between himself and Parker at the preliminary hearing, or of its failure to
appoint replacement counsel in the face of irreconcilable conflict between Parker and
himself at the hearing on his motion to discharge her, is that the court abused its
discretion denying substitute counsel. This is not the same as a deprivation of the Sixth
Amendment right to conflict-free counsel. See Pfannenstiel, 302 Kan. at 759-60 (noting
justifiable dissatisfaction can be "'"demonstrated by showing a conflict of interest, an
irreconcilable disagreement, or a complete breakdown in communication between
counsel and the defendant"'"); State v. Hegwood, 256 Kan. 901, 903, 888 P.2d 856 (1995)
(whether dissatisfaction with appointed counsel warrants appointment of new counsel
generally left to discretion of trial court); State v. Ferguson, 254 Kan. 62, 71, 864 P.2d
693 (1993) (lack of cooperation and communication between defendant and counsel does
not itself constitute violation of Sixth Amendment right to counsel).


                                             22
       Having failed to demonstrate Parker labored under a conflict of interest, and
having failed to demonstrate—or even to assert—Parker's representation at the
preliminary hearing was deficient, McDaniel cannot obtain relief under either the Cuyler
adverse effect test or the Strickland test, whichever might apply. Moreover, there is
nothing to suggest Parker's representation of McDaniel during the preliminary hearing or
at any other time before her removal could possibly have any effect on the trial outcome.
McDaniel notably does not assert any trial errors that could be traced to Parker's
representation before she was replaced. Accordingly, McDaniel is not entitled to relief on
this claim.


              FELONY-MURDER INSTRUCTION APPROPRIATELY STATED THE LAW


       McDaniel argues his felony-murder conviction must be reversed because the jury
was "denied the ability to consider whether or not the murder was completed prior to the
aggravated robbery." He contends the court should have instructed the jury that "whether
the murder occurred within the res gestae [of the underlying felony] is a fact question for
the jury." It is necessary to review what happened at trial.


Additional Facts


       Prior to the close of evidence, both parties submitted requested jury instructions to
the district court. The State's proposed instruction on the felony-murder charge read:


                "To establish this [first-degree murder] charge, each of the following claims must
       be proved:




                                                   23
                 "1. The defendant or another killed Ronald Wilson.


                 "2. The killing was done while defendant was committing or attempting
                 to commit aggravated robbery.


                 "3. This act occurred on or about the 9th day of July, 2012, in Sedgwick
                 County, Kansas."


       McDaniel requested a nearly identical instruction, which differed in substance
only by omitting "attempting" from the second element listed.


       At the instruction conference, the trial court reconciled the State's proposed
instruction, which would have required the jury to find the killing was done while
defendant "was committing" aggravated robbery, and McDaniel's, which would have
required the jury to find the killing was done while "in the commission of" aggravated
robbery. Defense counsel said if he inadvertently used a prior version of the pattern
instructions, the wording requested by the State was acceptable. After an off-the-record
discussion, the court decided, "The only language that's going to be added is [']for whose
conduct he is criminally responsible['] on paragraph 1." Based on this, the court
instructed the jury:


       "To establish this [first-degree murder] charge, each of the following claims must be
       proved:


                 "1. The defendant, or another for whose conduct the defendant is criminally
                 responsible, killed Ronald R. Wilson.


                 "2. The killing was done while defendant was committing Aggravated Robbery.




                                                    24
                "3. This act occurred on or about the 9th day of July, 2012, in Sedgwick County,
                Kansas."


Standard of Review


                "When analyzing jury instruction issues, an appellate court follows a three-step
       process by: (1) Determining whether the appellate court can or should review the issue,
       i.e., whether there is a lack of appellate jurisdiction or a failure to preserve the issue for
       appeal; (2) considering the merits to determine whether error occurred; and (3) assessing
       whether the error requires reversal. State v. Pfannenstiel, 302 Kan. 747, 752, 357 P.3d
       877 (2015). Whether a party has preserved a jury instruction issue affects the reversibility
       inquiry at the third step. 302 Kan. at 752; see also K.S.A. 2015 Supp. 22-3414(3) ('No
       party may assign as error the giving or failure to give an instruction . . . unless the party
       objects thereto before the jury retires to consider its verdict . . . unless the instruction or
       the failure to give an instruction is clearly erroneous.'). . . .


                "At the second step, [the court] consider[s] whether the instruction was legally
       and factually appropriate, employing an unlimited review of the entire record.
       Pfannenstiel, 302 Kan. at 752." State v. Louis, 305 Kan. 453, 457, 384 P.3d 1 (2016).


       McDaniel contends the trial court failed to include more particular language in its
instructions but did not request or object to this alleged failure at trial. Therefore, the
court's inquiry at the third step requires application of K.S.A. 2016 Supp. 22-3414(3)'s
clear error standard for reversal. See State v. Carter, 305 Kan. 139, 160, 380 P.3d 189
(2016). To obtain reversal, McDaniel must "firmly convince [the court] that '"the jury
would have reached a different verdict"' had the instruction been given." 305 Kan. at 163.




                                                       25
Discussion


       No Error was Invited

       The State initially argues McDaniel invited the instructional error, barring him
from even raising this issue on appeal. The State contends McDaniel did so by
"agree[ing] to the wording of the instruction at trial" and requesting the challenged
instruction.


       In State v. Walker, 304 Kan. 441, 445, 372 P.3d 1147 (2016), we held the invited
error doctrine did not bar the defendant from arguing on appeal that the trial court erred
in failing to instruct the jury on a lesser included offense. Defense counsel did not request
the instruction be given and did not object when the trial court opined that the instruction
was not warranted. In declining to apply the doctrine, we noted that "'[a] party must do
more than simply fail to object to a district court's proposed jury instruction to risk
application of the invited error doctrine.'" 304 Kan. at 444 (quoting State v. Dern, 303
Kan. 384, Syl. ¶ 4, 362 P.3d 566 [2015]). McDaniel's case is similar.


       McDaniel does not challenge the trial court's use of the language he asked the
court to use, and he does not challenge the absence of language he asked the court not to
use. He argues instead that language neither party nor the judge contemplated should
have been included in the instruction. With respect to the error he claims on appeal, all
McDaniel did was fail to object to the instructions as given. We decline to apply the
invited error doctrine under these circumstances.




                                              26
       The Instruction Fairly and Accurately Stated the Law


       McDaniel appears to argue the felony-murder instruction was incomplete because
it failed to inform the jury "whether the murder occurred within the res gestae is a fact
question for the jury." He claims the instruction as given prevented the jury from
considering whether the killing was completed before the aggravated robbery began.


       To be legally appropriate, "an instruction must always fairly and accurately state
the applicable law, and an instruction that does not do so would be legally infirm." State
v. Plummer, 295 Kan. 156, 161, 283 P.3d 202 (2012). McDaniel argues now for more
particular language in addition to the elements enumerated in the instruction that he does
not claim was otherwise erroneous. In a similar situation in State v. Pabst, 273 Kan. 658,
44 P.3d 1230 (2002), a pre-Plummer case, the court analyzed whether it was an error for
the district court to refuse to elaborate on the definition of premeditation given. The test
the court applied was "whether the instruction given properly and fairly stated the law as
applied to the facts of the case." 273 Kan. at 659.


       Felony murder is "the killing of a human being committed . . . in the commission
of, attempt to commit, or flight from any inherently dangerous felony." K.S.A. 2016
Supp. 21-5402(a)(2). The statute requires two elements of causation: (1) "[T]he death
must occur within the res gestae of the underlying felony"; and (2) "there must be a direct
causal connection between the felony and the homicide." State v. Phillips, 295 Kan. 929,
940, 287 P.3d 245 (2012). "Res gestae refers to acts that occurred '"before, during, or
after the happening of the principal occurrence when those acts are so closely connected
with the principal occurrence as to form, in reality, a part of the occurrence."'" 295 Kan.
at 940. Moreover, "[a] direct causal connection exists unless an extraordinary intervening
event supersedes the defendant's act and becomes the sole legal cause of death." 295 Kan.
at 941. The existence of a direct causal connection turns on the "time, distance, and the
                                             27
causal relationship between the underlying felony and the killing." 295 Kan. at 941. The
instruction given in the present case comports with the applicable pattern instruction. See
PIK Crim. 4th 54.120.


       "'If the particular facts in a given case require modification of the applicable pattern
       instruction or the addition of some instruction not included in PIK, the district court
       should not hesitate to make such modification or addition. However, absent such need,
       PIK instructions and recommendations should be followed.' State v. Dixon, 289 Kan. 46,
       Syl. ¶ 1, 209 P.3d 675 (2009)." State v. Bernhardt, 304 Kan. 460, 470, 372 P.3d 1161
       (2016).


       The instructions given permitted a guilty verdict only if the jury concluded Wilson
was killed "while" McDaniel was committing aggravated robbery. But contrary to
McDaniel's argument, the instruction he now requests would not have "allowed the jury
to consider whether the murder had been completed prior to the act of robbery." The jury
was required to consider this possibility when determining whether the shooting occurred
"while" McDaniel "was committing [a]ggravated [r]obbery." See State v. Jackson, 280
Kan. 541, 551, 124 P.3d 460 (2005) (noting requirement that jury find killing done
"while" felony being committed necessitated acquittal if jury believed felony was
completed or abandoned before victim was killed).


       The trial court did not err by failing to instruct the jury with the additional
language McDaniel requests because the instruction given fairly and accurately stated the
law and accordingly was legally appropriate. Moreover, McDaniel does not attempt to
persuade the court the verdict would have differed but for the absence of the language he
proposes in the instruction. See Carter, 305 Kan. at 160 (clear error standard for
reversal). Such an argument would not be persuasive, given McDaniel's confession that
the killing occurred in the course of a planned robbery.


                                                    28
      Affirmed.


      ROSEN, J., not participating.
      MICHAEL J. MALONE, Senior Judge, assigned.1




1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 112,513
vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.

                                          29
