                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 111,375

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                     LUTHER JOHNSON,
                                        Appellant.


                              SYLLABUS BY THE COURT

1.
       For jury instruction issues, the progression of analysis and corresponding
standards of review on appeal are: (1) First, the appellate court should consider the
reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
an unlimited standard of review; (2) next, the court should use an unlimited review to
determine whether the instruction was legally appropriate; (3) then, the court should
determine whether there was sufficient evidence, viewed in the light most favorable to
the defendant or the requesting party, that would have supported the instruction; and (4)
finally, if the district court erred, the appellate court must determine whether the error
was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
Kan. 541, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).


2.
       When reviewing the denial of a requested jury instruction, the appellate court
reviews for error and, if found, for harmlessness. But when reviewing the failure to give
an unrequested jury instruction, the appellate court must determine if the failure was
clearly erroneous.
3.
       Voluntary manslaughter is an intentional killing of a human being committed upon
a sudden quarrel or in the heat of passion. A heat of passion involves any intense or
vehement emotional excitement of the kind prompting violent and aggressive action, such
as rage, anger, hatred, furious resentment, fright, or terror, based on impulse without
reflection. A sudden quarrel is one form of heat of passion. An orchestrated confrontation
or methodically planned encounter is the antithesis of a sudden quarrel.


4.
       Under the facts of this case, the district court properly refused to give the jury an
instruction on voluntary manslaughter as a lesser included offense of premeditated first-
degree murder where the shooting death occurred because of the defendant's orchestrated
actions.


5.
       Unintentional second-degree murder is a killing of a human being that is not
purposeful, willful, or knowing but which results from an act performed with knowledge
that the victim is in imminent danger, although death is not foreseen. Reckless
involuntary manslaughter is the unintentional killing of a human being committed
recklessly.


6.
       The district court was correct in failing to instruct the jury on unintentional
second-degree murder and reckless involuntary manslaughter because the only inference
to be drawn from the evidence was that the defendant intended to kill the victim.


7.
       A claim that defendant was denied a constitutional right to present a full and
complete defense under the Fourteenth Amendment to the United States Constitution is a

                                              2
question of law subject to de novo review. The fundamental right to a fair trial is subject
to statutory rules and caselaw interpreting the rules of evidence and procedure.


8.
       Relevance is established by a material or logical connection between the asserted
facts and the inference or result they are intended to establish. Relevant evidence, as
defined in K.S.A. 60-401(b), is evidence having any tendency in reason to prove any
material fact.


9.
       Whether a third party was responsible for the crime a defendant is charged with is
clearly a material fact related to determining the defendant's guilt or innocence. But
without additional evidence showing that a third party could have committed the crime,
evidence merely suggesting that someone other than the defendant had a motive to
commit the crime has little probative value and can be properly excluded at trial.


10.
       Under the facts of this case, without a connection between the shooting death and
high general criminal activity in the area where the crime occurred, evidence of the latter
has scant probative value for establishing that someone other than the defendant shot the
victim.


11.
       An appellate court reviews the denial of a continuance for abuse of discretion.
Where a defendant claims the denial of a continuance interfered with his or her ability to
present a defense, the appellate court reviews the question de novo.




                                             3
12.
       When a criminal defendant's constitutional right to secure counsel of his or her
choice conflicts with the trial judge's discretionary power to deny continuances, the
reviewing court must balance several factors in determining whether the trial court's
conduct was fair and reasonable: (1) Whether a continuance would inconvenience
witnesses, the court, counsel, or the parties; (2) whether other continuances have been
granted; (3) whether legitimate reasons exist for the delay; (4) whether the delay is the
fault of the defendant; and (5) whether denial of a continuance would prejudice the
defendant. Under the facts of this case, the district court did not abuse its discretion by
denying the defendant's fourth motion for a trial continuance when each of the five
factors weighs heavily against the defendant.


13.
       A defendant's claim alleging ineffective assistance of counsel presents mixed
questions of fact and law. Appellate courts review the underlying factual findings for
support by substantial competent evidence and the legal conclusions based on those facts
de novo.


14.
       To establish ineffective assistance of counsel, the defendant must establish (1) that
counsel's performance was constitutionally deficient, which requires a showing that
counsel made errors so serious that his or her performance was less than that guaranteed
by the Sixth Amendment to the United States Constitution, and (2) that counsel's
deficient performance prejudiced the defense, which requires a showing that counsel's
errors were so severe as to deprive the defendant of a fair trial.


15.
       Under the facts of this case, the defense attorney's decision not to introduce
telephone recordings containing information potentially harmful to the defendant but to

                                              4
address credibility of a witness through other means was a sound strategic decision and
not a constitutionally deficient performance.


16.
        When considering the cumulative effect of trial errors, an appellate court has
unlimited review.


17.
        The doctrine of cumulative error does not apply where the reviewing court has not
found the existence of more than one trial error.


18.
        A trial court does not violate a defendant's constitutional rights by using prior
convictions in calculating a criminal history score to enhance a sentence without
requiring those convictions to be included in the complaint or proven to a jury beyond a
reasonable doubt.


        Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed August 5, 2016.
Affirmed.


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


        Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district
attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.


        The opinion of the court was delivered by


        NUSS, C.J.: Luther Johnson appeals his convictions on one count of first-degree
murder and one count of aggravated burglary related to the shooting death of Derrick

                                                     5
Hill. Johnson contends the district court erroneously: (1) failed to instruct the jury on the
offenses of voluntary manslaughter, unintentional second-degree murder, and reckless
involuntary manslaughter; (2) excluded testimony that the shooting happened in a high
crime area; (3) denied Johnson's request for a trial continuance; (4) denied Johnson's
motion for a new trial based on ineffective assistance of counsel; (5) made a combination
of rulings warranting a new trial; and (6) used Johnson's previous convictions for
sentencing purposes without their being proven to a jury beyond a reasonable doubt.


       We conclude Johnson's arguments are without merit. Accordingly, we affirm his
convictions.


                            FACTS AND PROCEDURAL HISTORY

       For 10 years Luther Johnson and Cerrina Nicole Griffin had an on-again, off-again
relationship. At the time of Derrick Hill's fatal shooting, they had been "off" for at least
30 days. During this time, Griffin and her daughter stayed with Griffin's cousin Victoria
Freeman and Freeman's infant son at Rosedale Ridge Apartments in Kansas City, Kansas.
Because Betty Grace Kebert and her daughter also lived there, Freeman slept in one
bedroom, Kebert in the other, and Griffin slept in the living room on an air mattress.


       During the evening of August 20, 2010, several individuals, including Hill, visited
Freeman's apartment to play cards and smoke marijuana. Later, Kebert and Demetrius
Grant went to Kebert's bedroom while Griffin, Hill, and Freeman continued playing cards
and watching television in the living room.


       Shortly after midnight, Freeman locked her apartment's front door and the sliding
glass door leading to the balcony before retiring to her bedroom. Griffin and Hill
continued watching television until they both fell asleep on the air mattress with their
heads near the balcony door.

                                              6
       The State's physical evidence and witnesses, including Griffin, showed that
sometime around 3 a.m., Johnson climbed onto the apartment's balcony from outside and
blew out the sliding glass door with a shot from a .45 caliber pistol. He then stepped into
the apartment, called Griffin's name, and began arguing with her near the air mattress.
Griffin and Hill did not have a sexual relationship, and she tried explaining to Johnson
she was not having sex with Hill. During this argument with Griffin from just inside the
shot-out balcony door, Johnson shot Hill in the left temple, and his pistol ejected a .45
caliber shell casing onto the blankets by the nearby couch. Griffin then fled to Kebert's
bedroom with Johnson in pursuit. There, Johnson grabbed her arm and dragged her out of
the apartment. When she resisted he told her if she did not come along he would "kill
[her], too."


       Grant testified he was asleep in Kebert's bed and awoke to the sound of a gunshot.
According to Grant, a black male came into the bedroom, grabbed Griffin—whose name
Grant did not know at the time—and the two left the apartment.


       In Kebert's statement to police at the scene after the shooting, she too said Griffin
and Johnson came into her bedroom, where he grabbed Griffin's arm and took her out of
the apartment. Kebert further told police Johnson had his arm around Griffin's neck and a
gun in his hand when she heard Griffin ask, "Luther, why'd you shoot him?"—but at trial,
she denied these observations. Kebert testified she made these earlier comments to the
police "to try to get my friend [Griffin] back to her daughter quicker."


       Apartment resident Freeman likewise testified at trial somewhat differently from
her statements at the scene. According to her earlier statements, after being awakened by
Kebert, she called 911 and told the dispatcher that her cousin's boyfriend, Johnson, had
shot out her balcony window and then shot Hill. Freeman told police that she was asleep
in her bedroom when she awoke to a loud noise. She too said she had seen Griffin and

                                              7
Johnson fighting and she heard Johnson say, "'I shot him.'" But at trial Freeman testified
that her 911 calls and statements to police were simply based on what Kebert had told her
once Kebert woke her up after the shooting.


       Several other witnesses in neighboring apartments, including Lakisha Davis,
LaShonda Barnes, and Gwendolyn Randle, testified to waking to gunshots and hearing a
man yelling outside the apartment as well as a woman screaming. Davis and Randle
testified that they ran to the front of their apartment and witnessed a black male saying to
a woman, "Come on, before I kill you, too."


       Griffin testified Johnson put her into the back seat of a green Mazda, told her to lie
down, and drove off. As they drove away Johnson said what had happened was stupid
and Griffin was at fault for Hill's death. According to Griffin's recorded police statement,
testified to by Detective Michael Vega, Johnson admitted he had killed Hill and would
not have had to if Griffin had not been a "ho" that night.


       For the defense, Keyanhna Johnson testified she and Luther Johnson were at his
mother's house watching a movie when Griffin repeatedly called. Luther then asked
Keyanhna if he could borrow her car and jumper cables to give Griffin a jumpstart, but
she refused. They went to bed around 2:30 or 3 a.m., and Johnson was gone when she
awoke at 6 a.m.


       Johnson testified that while he was watching the movie with Keyanhna, Griffin
called asking him to pick up her mother and brother from Children's Mercy hospital
because her car would not start. He initially refused but relented after Griffin called
multiple times. According to Johnson, at one point Griffin told him she was staying at
Freeman's, some people had entered the apartment, and one of them had a gun. He then
picked up Griffin's mother and brother from the hospital around 2 a.m., dropped them off,
and eventually drove to Freeman's apartment because he was worried about Griffin.

                                              8
       According to Johnson, while he was there Griffin told him an angry man named
Mike had come by earlier because Hill had purchased some weed from Mike with
counterfeit money. Griffin told him that Mike, who had "act[ed] like he was clutching on
a gun," eventually left. Johnson testified that while he later was outside trying to start
Griffin's car he heard gunshots and ducked around a car. Approximately 2 minutes later,
he went into the apartment building to get Griffin. According to Johnson, Griffin and
Kebert were screaming and acting hysterical, so he told Griffin they needed to go.


       Johnson further testified he took Griffin to his sister's house and went to sleep.
Later that night Griffin woke him up to tell him his face was on TV, and he was wanted
for questioning. Johnson then called Kimberlee Carson who picked up Johnson and
Griffin and let them stay at her house. Police ultimately arrested Johnson there several
days later.


       At trial, defense counsel requested a jury instruction on voluntary manslaughter,
arguing the evidence established a heat of passion killing. The district court refused to
issue the instruction, ruling that the evidence suggested the events preceding the shots
demonstrated an argument or conversation exclusively between Griffin and Johnson, not
Hill. The court later instructed the jury on premeditated first-degree murder, intentional
second-degree murder, and aggravated burglary.


       Ultimately, a jury convicted Johnson of premeditated first-degree murder under
K.S.A. 21-3401(a) and aggravated burglary under K.S.A. 21-3716. Johnson later filed
several motions including a motion for new trial, a pro se supplemental motion for new
trial, a second supplemental motion for new trial, and accompanying memoranda in
support.




                                              9
       The court denied the motions for new trial and sentenced Johnson to a hard 25 life
sentence for the first-degree murder conviction to run concurrent to 57 months'
imprisonment for the aggravated burglary conviction. Johnson timely appeals.


       Jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b)(3), (4) (maximum
sentence of life imprisonment imposed for an off-grid crime [first-degree murder]).


       More facts will be added as necessary to the analysis.


                                              ANALYSIS

Issue 1: The district court did not err in failing to instruct the jury on voluntary
manslaughter, unintentional second-degree murder, and reckless involuntary
manslaughter.

       Johnson argues that the jury could have returned a conviction for voluntary
manslaughter, unintentional second-degree murder, or reckless involuntary manslaughter
had the district court given instructions on these offenses. The State generally responds
that those instructions are not appropriate under the facts of this case.


Standard of review

       To analyze jury instruction issues on appeal, this court follows a stair-step
framework:


               "'For jury instruction issues, the progression of analysis and corresponding
       standards of review on appeal are: (1) First, the appellate court should consider the
       reviewability of the issue from both jurisdiction and preservation viewpoints, exercising
       an unlimited standard of review; (2) next, the court should use an unlimited review to
       determine whether the instruction was legally appropriate; (3) then, the court should
       determine whether there was sufficient evidence, viewed in the light most favorable to


                                                   10
       the defendant or the requesting party, that would have supported the instruction; and (4)
       finally, if the district court erred, the appellate court must determine whether the error
       was harmless, utilizing the test and degree of certainty set forth in State v. Ward, 292
       Kan. 541, 256 P.3d 801 (2011), cert. denied ___ U.S. ___, 132 S. Ct. 1594 (2012).'" State
       v. Salary, 301 Kan. 586, 592, 343 P.3d 1165 (2015) (quoting State v. Plummer, 295 Kan.
       156, Syl. ¶ 1, 283 P.3d 202 [2012]).


       Johnson requested an instruction for voluntary manslaughter. So we look to see if
denying the instruction was district court error and, if so, whether the error is harmless.
Salary, 301 Kan. at 592. But Johnson did not request an instruction on either
unintentional second-degree murder or reckless involuntary manslaughter. Consequently,
we look to see if this lack of such jury instructions met the higher standard of being
"clearly erroneous." K.S.A. 22-3414(3); State v. Briseno, 299 Kan. 877, 882, 326 P.3d
1074 (2014).


       As with the requested instruction, for these two unrequested instructions we must
first determine whether there was any error at all—i.e., whether each instruction was
legally and factually appropriate, employing an unlimited review of the entire record. See
Briseno, 299 Kan. at 882-83 (quoting State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292
[2013]). If no error, the analysis ends. But if error is found, then we must determine if it
is clear error, i.e., whether we are "'"firmly convinced that the jury would have reached a
different verdict had the instruction error not occurred."'" 299 Kan. at 883 (quoting
Herbel, 296 Kan. at 1121). Here, the burden to meet this standard is on Johnson. See 299
Kan. at 883 (quoting Herbel, 296 Kan. at 1121).




                                                    11
Discussion

       Voluntary manslaughter


       The first step to determine whether the district court erred by refusing to give the
voluntary manslaughter instruction Johnson requested is to ask if the instruction was
legally appropriate. Salary, 301 Kan. at 592. It was, because voluntary manslaughter is a
lesser included offense of both first- and second-degree murder—for which instructions
were given. See K.S.A. 21-3107(2)(a); State v. Wade, 295 Kan. 916, 924, 287 P.3d 237
(2012).


       Next, we examine whether the instruction was factually appropriate. Voluntary
manslaughter is defined as an "intentional killing of a human being committed . . . [u]pon
a sudden quarrel or in the heat of passion." K.S.A. 21-3403(a). Kansas considers sudden
quarrel as one form of heat of passion. State v. Johnson, 290 Kan. 1038, 1048, 236 P.3d
517 (2010). Heat of passion is defined as "'any intense or vehement emotional excitement
of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious
resentment, fright, or terror,' based 'on impulse without reflection.'" State v. Hayes, 299
Kan. 861, 864, 327 P.3d 414 (2014) (quoting State v. Guebara, 236 Kan. 791, 796, 696
P.2d 381 [1985]).


       The key elements of voluntary manslaughter are an intentional killing and legally
sufficient provocation. Hayes, 299 Kan. at 864. When reviewing whether provocation
was legally sufficient, an objective test is used: "[T]here must be an adequate
provocation that deprives a reasonable person of self-control and causes that person to act
out of passion rather than reason." 299 Kan. 861, Syl. ¶ 4.


       At trial, Johnson argued the evidence established a heat of passion killing. The
State responded that no evidence had been presented of any provocation of Johnson by

                                             12
the victim, Derrick Hill. The district court refused the instruction on voluntary
manslaughter:


       "And what we have in that regard is an unlawful entry, a—two individuals being held at
       gunpoint, that there was an argument—and I don't know if 'argument' is the right term.
       There was a—at least from the testimony of Cerrina [Griffin], she was emotional and
       apparently she came to the conclusion that given the circumstances of her being in the
       same room with the deceased that apparently in her mind she thought this would infuriate
       Luther [defendant], so she immediately began talking to him.


               "And as I recall her testimony, it then, and perhaps understandably so, given the
       nature of the situation, she couldn't be real specific about what happened, as I recall, and
       counsel mentioned this. Her mouth was moving. Luther's [defendant's] mouth was
       moving. I even think she said Derek's [Hill's] mouth was moving; we have no idea what
       Derek may have said or may not have said.


               "But as I interpret the evidence, what was going on prior to the shot or shots
       being fired was pretty much exclusively between Cerrina Nicole [Griffin] and the
       defendant, with the deceased being in a position of just basically standing there. There is
       no testimony—Cerrina was the only source we have that he came at the defendant, that
       he said anything in particular to the defendant which could cause him to act in a certain
       way, that he rushed at him, threatened him, that he did anything. He was just basically
       standing there and at some point in time, then,—and this is what Cerrina Nicole says—
       the defendant shot him.


               "And applying an objective standard to those facts, or to at least Cerrina
       Nicole's ability to remember what had happened at that time, based upon the
       applicable case law, I'm going to find that instruction on voluntary manslaughter
       would not be appropriate in this case."


       At the later hearing on Johnson's motion for a new trial, the court again explained
why the voluntary manslaughter instruction was inappropriate:



                                                    13
               "What happened here is that Mr. Johnson climbed up on a balcony of a place
       where he did not live, he was armed, shot out a window, entered the living room area,
       there was a significant pause, and then he shot a young man, who as the State points out,
       did nothing. Just got up, and then got shot. Now I suppose, Mr. Dent, [defense counsel]
       one might consider a heat of passion type thing if say you went to your own home and
       went to your own bedroom and walked in on your girlfriend, or whoever, and saw
       something going on, and you didn't have a gun on you, but you were so inflamed by that,
       there might be a gun or weapon handy, and you just grab it and spontaneously react to the
       situation. And that wasn't the case here.


               "Mr. Johnson went to someplace he didn't belong to begin with. He was
       convicted of aggravated burglary for shooting out the window and entering, and
       then rather cold bloodily and with deliberation, shot the victim in the head. . . . I
       just don't know what to say about that, other than there is no evidence."


       Johnson again argues that Griffin's testimony establishes an intense, emotional
argument occurred that potentially resulted in Hill's death. The State counters sufficient
provocation by the victim must exist but no evidence existed of any heated argument
between Johnson and Hill.


       For this analytical step—whether the voluntary manslaughter instruction was
factually appropriate—we must determine whether there was sufficient evidence, viewed
in the light most favorable to the defendant as the requesting party, that would have
supported the instruction. Salary, 301 Kan. at 592. In general, the district court must
instruct the jury on the law for a lesser included offense "where there is some evidence
which would reasonably justify a conviction of" it. K.S.A. 22-3414(3); State v. Hilt, 299
Kan. 176, 194, 322 P.3d 367 (2014).


       Johnson relies upon other jurisdictions where some courts found heat of passion
and voluntary manslaughter in situations he argues are factually similar to the present
case. While he first cites the concurring opinion in United States v. Martinez, 988 F.2d

                                                     14
685 (7th Cir. 1993), that case involved a fight between several inmates at a federal
correctional institution. Thus, our analysis is not aided by the concurrence's one-sentence
discussion of "heat of passion" involving a cuckolded husband finding his wife and her
lover ín flagrante delicto. 988 F.2d at 705 (Cudahy, J., concurring).


       Johnson next cites State v. Rainey, 154 N.C. App. 282, 574 S.E.2d 25 (2002),
where the defendant shot a man having a relationship with the defendant's sister. The
defendant requested an instruction on attempted voluntary manslaughter. The North
Carolina appellate court described the "typical" voluntary manslaughter situation as
"homicide committed in the moments after discovering a spouse in the act of infidelity."
154 N.C. App. at 287. Accordingly, the dissimilar facts in Rainey do not provide helpful
guidance.


       Johnson also cites People v. McCarthy, 132 Ill. 2d 331, 547 N.E.2d 459 (1989),
where the defendant found his girlfriend and a man lying in bed and shot both of them,
killing the female. The Illinois Supreme Court listed several circumstances constituting
sufficient provocation, including adultery with defendant's spouse. But the defendant and
his girlfriend had never married and had broken up before the shooting. As a result, the
court declined to determine whether adultery-based voluntary manslaughter should be
extended beyond a marital relationship. 132 Ill. 2d at 341-42.


       By contrast, our decision in Wade, 295 Kan. 916, provides more valuable
guidance. Wade was convicted of the premeditated first-degree murder of his child's
mother who called Wade to say that he could not see his son. Wade brought a handgun to
the residence where she was staying, climbed through a window, and shot her. We held
that a voluntary manslaughter instruction was not factually appropriate because there was
no evidence of sudden quarrel where Wade "orchestrated the encounter which is the
antithesis of an unforeseen event." 295 Kan. at 925.


                                            15
       In Wade we concluded the defendant's behavior leading up to the shooting—
arming himself with a handgun before leaving home—implied he planned to use it in
some manner during his encounter with the victim. His behavior simply did not support
his contention that the murder was performed without reflection. We further noted that
while Wade's anger with the victim may have provided a motive, the anger did not
provide sufficient provocation for the shooting to be in the heat of passion. 295 Kan. at
926 ("A slow burn is not heat of passion.").


       Similarly, Johnson's orchestration of the encounter does not suggest that his
actions were merely taken "'on impulse without reflection.'" Hayes, 299 Kan. at 864. The
evidence instead demonstrates Johnson armed himself with a loaded .45 caliber handgun,
drove to the apartment where he knew Griffin—his former girlfriend—was staying,
climbed up the balcony, and shot out the sliding glass door of the apartment. Although
Johnson saw Griffin sleeping on an air mattress with Hill, no physical act was occurring.


       Johnson paused after taking his glass-shattering shot—stepping into the apartment
and talking with Griffin while she tried to convince him nothing was going on between
Hill and her. Hill said nothing. Johnson then shot Hill in the left temple—per the
testimony and photographs of the scene, from a distance less than the length of the air
mattress. While Johnson blamed Griffin for making him do it and his jealousy may have
provided a motive for killing Hill, under these circumstances it did not provide sufficient
provocation for the shooting to be in the heat of passion.


       Accordingly, a voluntary manslaughter instruction was not factually appropriate
here. So the district court did not err in refusing to give it.




                                               16
       Unintentional second-degree murder and reckless involuntary manslaughter


       Unlike the voluntary manslaughter instruction, Johnson did not request an
instruction for unintentional second-degree murder or reckless involuntary manslaughter.
As noted, we review these particular instruction challenges for clear error. Briseno, 299
Kan. at 882. We begin by acknowledging these instructions are legally appropriate
because unintentional second-degree murder and reckless involuntary manslaughter are
lesser included offenses of first-degree murder—for which instructions were given. State
v. Engelhardt, 280 Kan. 113, 135, 119 P.3d 1148 (2005).


       Again, we must next determine whether the instructions were factually
appropriate. Salary, 301 Kan. at 592. Under K.S.A. 21-3402(b), unintentional second-
degree murder is "the killing of a human being committed . . . unintentionally but
recklessly under circumstances manifesting extreme indifference to the value of human
life." Per K.S.A. 21-3404(a), involuntary manslaughter is "the unintentional killing of a
human being committed . . . [r]ecklessly." And, "[r]eckless conduct is conduct done
under circumstances that show a realization of the imminence of danger to the person of
another and a conscious and unjustifiable disregard of that danger." K.S.A. 21-3201(c).
We have held reckless involuntary manslaughter differs from reckless second-degree
murder only in the degree of recklessness required to prove culpability. Engelhardt, 280
Kan. at 135.


       Johnson argues the Kansas legislature effectively has stated that proof a person
acted intentionally also establishes he or she acted recklessly under K.S.A. 2015 Supp.
21-5202(c) which provides:


               "Proof of a higher degree of culpability than that charged constitutes proof of the
       culpability charged. If recklessness suffices to establish an element, that element also is



                                                    17
       established if a person acts knowingly or intentionally. If acting knowingly suffices to
       establish an element, that element also is established if a person acts intentionally."


       But neither Johnson nor the State addresses K.S.A. 2015 Supp. 21-5103(d),
involving the scope and application of the Kansas Criminal Code, which provides:


               "This code has no application to crimes committed prior to July 1, 2011. A crime
       is committed prior to the effective date of the code if any of the essential elements of the
       crime as then defined occurred before that date. Prosecutions for prior crimes shall be
       governed, prosecuted and punished under the laws existing at the time such crimes were
       committed." (Emphasis added.)


Because the fatal shooting of Hill was performed on August 21, 2010, Johnson's
arguments based upon K.S.A. 2015 Supp. 21-5202 necessarily fail.


       We now resume our review for factual propriety of the two instructions. We
observe that "second-degree reckless murder is a killing of a human that is not
purposeful, willful, or knowing but which results from an act performed with knowledge
that the victim is in imminent danger, although death is not foreseen." (Emphasis added.)
State v. Killings, 301 Kan. 214, 225-26, 340 P.3d 1186 (2015). And an instruction for
reckless involuntary manslaughter is appropriate when the act resulting in death was
intentional, but the defendant did not intend to kill the victim. State v. McCullough, 293
Kan. 970, 978-79, 270 P.3d 1142 (2012).


       In Killings, this court held that a requested, but rejected, second-degree reckless
murder instruction was factually inappropriate where the evidence established Killings
went to the apartment to exact revenge, pointed a gun at the victim, taunted him, and shot
at him multiple times, hitting him once. We reasoned the only inference that could be
gleaned from this evidence was that Killings intended to kill the victim. 301 Kan. at 227.
We contrasted two cases: State v. Cordray, 277 Kan. 43, 56, 82 P.3d 503 (2004)

                                                    18
(evidence sufficient to support jury verdict of unintentional but reckless second-degree
murder where the defendant fired a gun in the general direction of a vehicle at night,
striking an occupant); State v. Jones, 27 Kan. App. 2d 910, 915, 8 P.3d 1282 (2000) (held
jury could have found evidence supporting recklessness where witnesses testified
defendant shot gun randomly over crowd of people with eyes closed). See also State v.
Mitchell, 23 Kan. App. 2d 413, 416-17, 422, 932 P.2d 1012 (1997) (Defendant claimed
victim had pulled a gun on him and he was afraid for his life, so he pulled out his own
gun, closed his eyes, and began shooting. Reversed and remanded for instruction on
involuntary manslaughter.), cited in State v. Houston, 289 Kan. 252, 275, 213 P.3d 728
(2009).


       Here, like Killings, the only inference that can be gleaned from the trial evidence
was that Johnson intended to kill Hill. We recognize Johnson testified he was in the
parking lot during the shooting. But as mentioned in the analysis of the voluntary
manslaughter issue, the State's evidence demonstrated that he took a loaded handgun and
drove to the apartment where he knew his ex-girlfriend, Griffin, was staying; climbed up
the balcony; shot out the glass door; and entered. After some discussion with Griffin, he
shot Hill in the left temple with a .45 caliber handgun—according to the testimony and
photographs, from a distance less than the length of the air mattress. See Houston, 289
Kan. at 275-76 (among other things, evidence showed defendant shot victim in face with
12-gauge shotgun from within 15 feet; court rejected involuntary manslaughter
instruction after concluding no rational jury could have found defendant did not intend to
kill victim). Shortly after the shooting Johnson told Griffin if she did not come with him
he would kill her too and she was at fault for Hill's death. In short, no reasonable jury
would conclude he acted recklessly. See K.S.A. 22-3414(3) (judge shall instruct the jury
"where there is some evidence which would reasonably justify a conviction of some
lesser included crime").




                                             19
       As a result, jury instructions for both unintentional second-degree murder and
involuntary manslaughter were not factually appropriate. So the district court's failure to
so instruct certainly could not be clearly erroneous as required for unrequested
instructions. See State v. Cooper, 303 Kan. 764, 769, 366 P.3d 232 (2016).


Issue 2: The district court did not err by excluding evidence that the shooting occurred in
a high crime area and that someone had threatened Johnson and Griffin and vandalized
Griffin's car.

       Johnson argues the district court denied him his right to a full and complete
defense by excluding evidence that (1) Rosedale Ridge Apartments, where the shooting
took place, was a "high crime" area, and (2) someone had threatened Johnson and Griffin
and vandalized Griffin's car. Both categories of evidence allegedly support a theory that
someone besides Johnson fatally shot Hill. The State responds there was no basis to
legally admit any evidence about the high crime area.


Standard of review

       A claim that defendant was denied a constitutional right to present a full and
complete defense under the Fourteenth Amendment to the United States Constitution is a
question of law subject to de novo review. State v. Maestas, 298 Kan. 765, 780, 316 P.3d
724 (2014). But the fundamental right to a fair trial is "subject to statutory rules and
caselaw interpreting the rules of evidence and procedure." 298 Kan. at 781 (citing State v.
Wells, 289 Kan. 1219, 1235, 221 P.3d 561 [2009]).


       When this court considers a challenge to exclusion of evidence, we first consider
relevance, which is established by


       "'a material or logical connection between the asserted facts and the inference or result
       they are intended to establish. [Citation omitted.] Relevant evidence, as defined in K.S.A.


                                                   20
      60-401(b), is "evidence having any tendency in reason to prove any material fact." In
      State v. Reid, 286 Kan. 494, 505, 186 P.3d 713 (2008), we explained that this definition
      of "relevance" contains both a materiality element and a probative element. There, we
      held that an appellate court reviews a district court's determination of materiality de novo
      and the assessment of probative value under an abuse of discretion standard. [Citation
      omitted.]'" State v. Burnett, 300 Kan. 419, 427, 329 P.3d 1169 (2014) (quoting State v.
      Ultreras, 296 Kan. 828, 857, 295 P.3d 1020 [2013]).


See State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007).


      In considering evidence that a third party is responsible for committing a crime,
we have stated:


              "Whether a third party was responsible for the crime a defendant is charged with
      is clearly a material fact related to determining the defendant's guilt or innocence. We
      have previously stated that '[w]hile evidence of the motive of a third party to commit the
      crime, standing alone, is not relevant, such evidence may be relevant if there is other
      evidence connecting the third party to the crime.' State v. Brown, 285 Kan. 261, Syl. ¶ 26,
      173 P.3d 612 (2007). In other words, without additional evidence showing that a third
      party could have committed the crime (e.g., presence at the crime scene, the opportunity
      and means to commit the crime), evidence merely suggesting that someone other than the
      defendant had a motive to commit the crime has little probative value and can be
      properly excluded at trial. 'A district court judge must evaluate the totality of facts and
      circumstances in a given case to determine whether the defense's proffered evidence
      effectively connects the third party to the crime charged.' 285 Kan. 261, Syl. ¶ 27.
      Because the district court's determination of this question contemplates whether the
      proffered evidence is probative to establishing a third party's involvement in the charged
      crime, the district court's decision is reviewed for an abuse of discretion." (Emphasis
      added.) Burnett, 300 Kan. at 431-32.




                                                   21
Discussion

       At the outset, we observe that evidence of Griffin's vandalized car and threats to
Johnson and Griffin was admitted at trial. As a result, Johnson's arguments about their
erroneous exclusion have no merit. His counsel expressly cross-examined Griffin about
the vandalism to her car and threats made to Johnson:


       "Q.    Okay. And at some time did he break down and say he was scared? There were
              threats?
       "A.    I mean, he said he was scared.
       "Q.    Did anybody make any mention of somebody tearing up your car?
       "A.    Yeah, we heard it from someone.
       "Q.    Who did you hear it from?
       "A.    Quite a few people.
       "Q.    But you said you weren't in contact with people, so who are the quite a few
              people you heard it from?
       "A.    I don't know, you would have to ask him. He was the one getting the information.
       "Q.    So he was in contact with people, but you weren't.
       "A.    That's correct.
       "Q.    Okay. So he found out from Victoria or Vicky or whoever that your car had been
              damaged?
       "A.     I don't know who he found out from." (Emphasis added.)


       Additionally, Johnson himself testified during direct examination that he was
receiving threats and that one of the residents of the apartment had called him to say
someone "was messing [Griffin's] car up." And during the State's rebuttal, a detective
testified that while obtaining a statement, Johnson told him, "'I hear I'm getting threats
that people are going to kill me.'"


       As for Johnson's arguments the court erred by excluding evidence that the fatal
shooting occurred in a "high crime" area, he claims such evidence was relevant to prove


                                                 22
the material fact of identity. Specifically, his defense was premised on his not being in
the apartment when Hill was shot; thus someone else pulled the trigger. The State
responds that admitting evidence that "other people" might have killed the victim,
standing alone, is not relevant.


       On the first day of trial, defense counsel asked Officer Jared Shearer if he would
"describe Rosedale Ridge as a high crime area?" The court sustained the State's objection
on relevance grounds. Defense counsel then argued there was no physical evidence
against Johnson so the theory was "if not him, then who?" He reasoned evidence that this
was a high crime area, where one other "shots fired" police call happened that day and six
or seven "shots fired" calls happened that month, would thus be relevant.


       The State countered it had direct evidence that Johnson was the only one in the
apartment with a gun; that he admitted telling Griffin he shot Hill and it was her fault;
and that it had considerable circumstantial evidence. The State therefore argued evidence
that some other person might have fired the shots was "irrelevant, speculative, and we
believe misleading to the jury." The district court confirmed its exclusionary ruling but
said it was willing to revisit the issue if the parties were able to provide caselaw before
the other detectives testified.


       On the second day of trial, defense counsel acknowledged that he could not find
any caselaw directly on point but submitted:


       "I certainly think the fact that this particular apartment complex in the month of August
       alone had seven shots-fired calls, three of them in this apartment building; two shootings
       not including—two shootings total; five armed disturbances; one armed robbery; five
       attempts to locate wanted persons; two suspicious persons; and four suspicious crowd
       calls there in the building—or there in the complex. There was a separate shots-fired call
       from this particular building in that complex this same day.



                                                   23
              "And so, I believe that—that it does at least show that there are other people on
      the grounds out there who are clearly armed, who have firearms that there is certainly the
      opportunity to commit this crime. I believe it is more than just me standing up here trying
      to argue blankly that somebody else could have done it that there is at least a record that
      there are other people at that complex who are armed and causing problems. And I think
      it is more than just tangential. . . . I clearly think that it is a natural or logical connection
      here to say we believe some other dude did it and that there certainly is evidence that
      there are other people out there armed and causing problems." (Emphasis added.)


      The State responded there was no evidence that anyone besides Johnson
was "out to get Derek Hill;" that this "high-crime area" evidence would allow the
jury to consider evidence that had no relevance; and the defense based on third
party evidence requires specific information to implicate another person.


      The district court once again agreed with the State:


      "I believe you're correct. Well, you know, statistically I guess Wyandotte County and
      probably Sedgwick County are considered the high-crime counties in the state, and so
      just because something happens in Wyandotte County or Sedgwick County, you can't in
      every criminal trial say, well, this happened in a high-crime county. And then you further
      go down into areas, well, just because a crime happened in an area where crimes happen
      does not necessarily have any connection to that crime, we'd be hearing this evidence in
      nearly every criminal case that we have. I think it is kind of fact-driven.


              "Let's say the facts in this case were that the victim was standing by the window,
      a bullet came from somewhere, went through the window, and then hit him. In other
      words, it could be argued factually that this was some random shot that was fired. There's
      lots of shots fired in that area that could be a factual possibility. Well, then maybe I think
      you could talk about there's lots of gunfire in this area, and it could have happened that
      way as opposed to some evidence of an individual.


              "But what you have here is a shell casing on the balcony, a shell casing inside
      the apartment, so it's not—it's a factual scenario where a person was standing right there

                                                     24
       and firing the shots. And so given the way the crime apparently was committed, I don't
       see that the fact that it occurred in what one may, quote/unquote, consider a 'high crime
       area' would be relevant, so your request is once again denied." (Emphasis added.)


       At the hearing on Johnson's motion for new trial, defense counsel again argued
Johnson was not allowed to completely present his defense that someone else had
committed the crimes. The district court yet again rejected this argument that relied upon
third party evidence:


               "As far as the allowing the evidence of gunshots in the area and other crimes that
       may have gone on near this period of time, I just didn't see at the time how that would be
       relevant and probative of anything in terms of a defense. Basically, all the—all that
       would show is that this particular homicide occurred in what might be referred to as a
       high crime area. And if every time you have a trial, whether it's a robbery or a burglary or
       happens to be homicide, you don't bring in evidence that well, you know, two days ago,
       there were shots fired down the street. I mean its not probative of anything, other than
       you know, that's just kind of what the area is like. And you would have to have more than
       that, I think, to somehow tie it into this specific incident. And it just wasn't there. It was
       just speculative not probative." (Emphasis added.)


       On appeal, the State contends the facts of the instant case are similar to those in
State v. Knox, 301 Kan. 671, 347 P.3d 656 (2015). There, Knox argued evidence of guns
and drugs found in the home near the murder scene was relevant to show someone else,
such as a rival drug dealer, could have committed the murder. Knox reasoned most
people know that drug houses are inherently dangerous, and someone inside could have
shot the victim. We rejected the argument, stating:


               "Yet, evidence of a third party's motive, on its own, will be excluded for
       relevance where nothing else connects the third party to the crime. See State v. Carr, 300
       Kan. 1, 197-203, 331 P.3d 544 (2014). And nothing in this case connects a third party to
       the crime. The simple presence of guns and drugs in a house that Morris never had a


                                                     25
       chance to enter does not lead to an inference that someone else was involved in Morris'
       murder. Witnesses saw two or three men walk towards Morris' Mustang, shoot Morris,
       and then leave in vehicles. No evidence suggested the involvement of anyone other than
       Knox and his companions; nothing implicated anyone who entered or exited the house.
       Nor was there any suggestion that Morris' murder had anything to do with the drugs and
       guns found in the house. Theoretically, a house with drugs and guns can be a dangerous
       place, but that alone has no tendency to show that an unidentified and unseen person
       from the house or an unidentified rival drug dealer killed Morris." (Emphasis added.)
       301 Kan. at 689.


We held that because the presence of guns and drugs was not material and probative to
whether Knox murdered the victim, the district court did not err in excluding the
evidence and Knox's right to present his defense therefore was not violated. 301 Kan. at
690.


       Our decision in Burnett, 300 Kan. 419, also provides valuable guidance. Burnett
was convicted, among other things, of felony murder for firing a gun into the residence of
a man with whom he had a dispute. Burnett argued the district court erred in excluding
evidence that other shootings previously had occurred at the home—which he offered to
raise the possibility that someone else may have shot at the residence. We upheld the
district court's exclusion, stating:


               "In this case, Burnett proffered evidence establishing that Ramsey's house was
       the target of shootings before and after July 7 and suggested that because the house had
       been the target of other shootings—which he claimed were drug related—it was possible
       that someone else was responsible for the July 7 shooting. Though the evidence tends to
       show that the house attracted criminal activity, it fails to identify or show that someone
       other than Burnett was responsible for the July 7 shooting. Without evidence connecting
       the prior or subsequent shootings to the July 7 shooting (e.g., the same gun was used in
       all the shootings), the evidence of prior or subsequent shootings has little probative value
       to establishing the material fact that someone other than Burnett committed the July 7
       shooting." (Emphasis added.) 300 Kan. at 433.

                                                   26
       Without a connection between the shooting and high general criminal activity,
evidence of the latter has scant probative value for establishing that someone other than
Johnson shot Hill. Moreover, Johnson was already able to present evidence that a third
party named "Mike"—an otherwise unidentified and reputed drug dealer—may have shot
Hill because Hill paid Mike for drugs with counterfeit money.


       Consequently, the district court did not abuse its discretion by excluding the high
crime area evidence. See Burnett, 300 Kan. 431-32 (district court's decision on whether
proffered evidence is probative to establishing a third party's involvement in the charged
crime is reviewed for an abuse of discretion). Johnson's right to present his defense
therefore was not violated.


Issue 3: The district court did not err in denying Johnson's request for a trial
continuance.

       Johnson argues the district court abused its discretion by denying a request
for continuance by his retained counsel, William Dunn, who entered an
appearance 6 days before trial. He claims (1) the continuance would not have
inconvenienced the witnesses, court, counsel, or parties; (2) legitimate reasons
existed for the delay; and (3) denial of the continuance prejudiced him by denying
him effective assistance of counsel. Unsurprisingly, the State responds the court
did not arbitrarily deny Johnson's request.


Standard of review

       K.S.A. Supp. 22-3401 provides that "[c]ontinuances may be granted to
either party for good cause shown." We review the denial of a continuance for
abuse of discretion. State v. Robinson, 303 Kan. 11, 90, 363 P.3d 875 (2015)
(citing Burnett, 300 Kan. at 436).

                                              27
       We often have stated that judicial discretion can be abused in three general ways:
where judicial action is arbitrary or based on an error of law or fact. State v. Warrior, 294
Kan. 484, 505, 277 P.3d 1111 (2012). The party asserting abuse of judicial discretion has
the burden to prove it on appeal. State v. Smith-Parker, 301 Kan. 132, 161, 340 P.3d 485
(2014). Additionally, where a defendant claims the denial of continuance interfered with
his or her ability to present a defense, we review the question de novo. Robinson, 303
Kan. at 90; State v. Lewis, 299 Kan. 828, 846, 326 P.3d 387 (2014).

Discussion

       "An essential element of the Sixth Amendment's protection of the right to counsel
is that a defendant must be afforded a reasonable opportunity to secure counsel of his or
her choosing." State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995) (citing
Powell v. Alabama, 287 U.S. 45, 53, 53 S. Ct. 55, 77 L. Ed. 158 [1932]). Although "an
accused must be provided a fair opportunity to obtain counsel of his or her choice, this
right cannot be manipulated to impede the efficient administration of justice." 257 Kan. at
1019 (citing State v. Bentley, 218 Kan. 694, 695, 545 P.2d 183 [1976]). The United States
Supreme Court has explained some of the tension in this area:

       "Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least
       of their problems is that of assembling the witnesses, lawyers, and jurors at the same
       place at the same time, and this burden counsels against continuances except for
       compelling reasons. Consequently, broad discretion must be granted trial courts on
       matters of continuances; only an unreasoning and arbitrary ‘insistence upon
       expeditiousness in the face of a justifiable request for delay' violates the right to the
       assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589[, 84 S. Ct. 841, 11 L. Ed. 2d
       921] (1964)." (Emphasis added.) Morris v. Slappy, 461 U.S. 1, 11-12, 103 S. Ct. 1610, 75
       L. Ed. 2d 610 (1983), quoted in Robinson, 303 Kan. at 85.




                                                     28
         As this court stated in Anthony: "'When a criminal defendant's constitutional right
to secure counsel of his choice conflicts with the trial judge's discretionary power to deny
continuances, the reviewing court must balance several factors in determining whether
the trial court's conduct was "fair and reasonable."'" 257 Kan. at 1019 (quoting United
States v. Kelm, 827 F.2d 1319, 1322 [9th Cir. 1987]). These factors are: "(1) [W]hether a
continuance would inconvenience witnesses, the court, counsel, or the parties; (2)
whether other continuances have been granted; (3) whether legitimate reasons exist for
the delay; (4) whether the delay is the fault of the defendant; and (5) whether denial of a
continuance would prejudice the defendant." Robinson, 303 Kan. at 90 (quoting Anthony,
257 Kan. at 1019).


         We begin our analysis with a review of events. On August 23, 2010, Johnson was
charged with the crimes arising out of the Hill shooting. Steven Alexander was appointed
as his counsel. In November 2010, Johnson's request for new counsel was granted and
Patricia Kalb was appointed as his second counsel. Following his February 28, 2011,
preliminary hearing, Johnson was bound over for trial, which was set for May 9, 2011.


         On April 15, 2011, over the State's objection, Johnson was granted a continuance
and trial was reset for August 22, 2011. Johnson then filed another motion for
continuance asserting his family was hiring private counsel to defend him. After an
August 4, 2011, hearing, the court ruled that Johnson presented no evidence of an
attorney being hired.


         Five days later on August 9, 2011, Johnson filed a pro se motion for change of
counsel, and a hearing was held August 12, 2011. The court noted that although
Johnson's actual complaints about his attorney were not significant, Johnson clearly had
lost confidence in Kalb. It granted his request for new counsel and again continued the
trial.


                                              29
       On August 15, 2011, Michael Nichols was appointed as Johnson's third counsel,
and the court later set trial for a third date: January 23, 2012. On January 3, 2012, three
weeks before trial, Johnson filed a pro se motion to replace Nichols as counsel, and
Nichols filed a motion to continue the jury trial.


       On January 20, 2012, the court denied Johnson's motion for new counsel but
granted the motion for continuance. At the February 23, 2012, status conference, the
court set trial for a fourth date: April 16, 2012.

       Five days before trial, on April 11, 2012, William Dunn entered an appearance as
Johnson's retained counsel—his fourth counsel overall. Dunn also moved the court to
continue the jury trial—now set for April 16—to a fifth date. At a hearing the next day,
Dunn explained that he would not be prepared to try a murder case 4 days later. Dunn
told the court if it did not grant the continuance, he planned to withdraw and allow
Nichols to proceed as counsel.


       At that hearing, the State asked the court to deny the motion because of the
number of continuances previously granted to Johnson; the multiple attorneys already
appointed to represent him; the inconvenience to witnesses, jurors, counsel, and the court;
and the defense's failure to demonstrate any legitimate reason for delay. The district court
agreed with the State and, after applying the factors identified in Anthony, denied the
motion:


               "Mr. Johnson has had since August the 23rd of 2010, for either himself or as Mr.
       Dunn tells us here today, his retainer is coming from family and friends for his family
       and friends to put retainer money together and hire some other counsel. Quite frankly, I
       don't even know if Mr. Dunn is in fact Mr. Johnson's counsel of choice. . . .


               "But that doesn't matter how that went because it's absolutely clear to me based
       on the record in this case that all of Mr. Johnson's actions in this case in getting, one, two,


                                                     30
      three, prior trial settings continued is to delay a resolution of this case to manipulate
      basically to put it in the vernacular to gain [game] the system. I'm trying to get a lawyer
      to work for me, and put off, as I stated, a resolution in this case.


              "And Ms. Lidtke [prosecutor] has stated, she has subpoenas issued. She has
      people personally served. Mr. Nichols [defense attorney] has been diligently been
      working on this case for the last six months, we've had several hearings where I've heard
      several motions that Mr. Nichols has filed. He has subpoenas out. Like I said, been
      working for six months, knows the case, knows what's in the State's file and I have no
      doubt in my mind has been pursuing whatever defenses are available to his client. . . .
      Subpoenas have been issued. Both counsel, I'm sure, have talked to and interviewed their
      witnesses. This is the second time this case has been set in front of this division of the
      Court. Based upon the Court's schedule of things coming up, I don't know when in the
      world we could get to this again in a reasonable timeframe. Jurors, as Ms. Lidtke has
      pointed out, have already been called in. All of that applies to that factor. Whether other
      continuances have been granted, we've already talked about that extensively. Whether
      legitimate reasons exist for the delay and I'm not aware of any legitimate reason, other
      than the fact that the defendant, once again, wants to once again to have a new attorney.
      And in my view, that is done for the purposes of delay.


              ....


              ". . . Whether the delay is the fault of the defendant that's clear in this case. The
      continuance at his request. All previous delays were attributable to the defendant.
      Whether the denial of the continuance would prejudice the defendant, I do not see any
      way that this delay would prejudice the defendant. For the past year and a half, he has
      had two highly competent counsel working on this case and I don't see the changing
      counsel at this stage of the game would in any way prejudice him. That would only cause
      other difficulties, therefore based on that record of facts and law, I find that the request
      for a continuance should be and is hereby denied." (Emphasis added.)


      Dunn then asked for permission to withdraw, which was granted. Later, Johnson
again raised his continuance argument when seeking a new trial. An evidentiary hearing


                                                    31
on the motion for new trial was held, and Johnson was represented by his fourth
appointed counsel, Paul Dent. Both Dunn and Nichols testified, and the court affirmed
both its earlier decision and underlying rationale.


       Dunn's requesting a continuance so he could remain as Johnson's newly-retained
counsel was the functional equivalent of requesting a continuance so he then could be
retained as new counsel. See Anthony, 257 Kan. at 1019 (counsel would not enter an
appearance in case without first securing a continuance). So the test applied in Anthony
applies here.


       Under the first Anthony factor—i.e., whether a continuance would inconvenience
witnesses, the court, counsel, or the parties—Johnson argues no specific evidence shows
such an inconvenience. The State responds that another continuance would have
inconvenienced everyone including the 22 witnesses ready to testify for the State—
particularly those already subpoenaed—and the 60 jurors who had been summoned for
the April 2012 trial. At the continuance hearing, the State argued this was "not an easy
case to try because we don't have cooperation from a lot of witnesses, so we have gone
through a lot of steps to secure personal attendance, some of the primary material
witnesses in this case." Additionally, the court pointed out that the witnesses had been
interviewed by both attorneys and it would be difficult to schedule a new trial date in a
reasonable timeframe. Accordingly, this factor weighs in favor of the State.


       The second factor—i.e., whether other continuances have been granted—also
weighs in favor of the State. Johnson had already requested and received three
continuances of his scheduled trial settings—April 15, 2011, August 12, 2011, and
January 20, 2012—and the State objected to two of them. In short, the court rejected
Johnson's fourth request, i.e., for a fifth trial setting.




                                                32
       Under the third factor—i.e., whether legitimate reasons exist for the delay—
Johnson argues Dunn needed time to prepare to effectively represent Johnson. He
contends he was required to choose between two of his Sixth Amendment rights: to
retain private counsel and to receive effective assistance of counsel. Nichols was the third
attorney appointed to represent Johnson, however, and was prepared to go to trial. The
court noted that the only possible legitimate reason for the delay was that Johnson wanted
yet another new attorney—but merely for the purposes of creating a delay. Accordingly,
this factor weighs in favor of the State.


       As for the fourth factor—i.e., whether the delay is the fault of the defendant—
Johnson argues attributing the delay to him amounts to punishing him for his financial
circumstances. The State responds that he had had a reasonable time to hire an attorney of
his choice. It points out Johnson was charged in August 2010 and had been granted three
continuances and been appointed three attorneys before Dunn's motion for continuance in
April 2012. As early as August 2011, Johnson expressed his desire to hire retained
counsel. However, after a hearing, the district court found no evidence that an attorney
was being hired at that time. It took Johnson 8 additional months to obtain retained
counsel. The delay was properly attributed to Johnson. So this factor weighs in favor of
the State.


       Under the final factor—i.e., whether denial of a continuance would prejudice the
defendant—Johnson argues the continuance denial made Dunn withdraw and left him
with Nichols who provided ineffective assistance of counsel. The State responds no
substantial rights were prejudiced by denial of Johnson's fourth request for continuance
and resetting to a fifth trial date. Indeed, Dunn was not told he could not participate in the
trial, but he nevertheless chose to withdraw. Additionally, as analyzed below, Johnson
has not demonstrated that he was denied effective assistance of counsel at trial.




                                             33
       When we balance these Anthony factors, they easily support denial of a
continuance. This denial is bolstered by Anthony itself. There, 18 days before trial,
Anthony retained counsel who promptly sought a continuance though the case had been
pending for 6 months. Counsel explained the funds were not available to retain him until
shortly before trial, and he would need at least 2 months to prepare for trial. Anthony had
already been granted one continuance, and speedy trial rights would have demanded that
Anthony's case be severed from his codefendants. After listing the factors from Kelm,
827 F.2d at 1322 n.2, the Anthony court found no abuse of discretion in denying the
continuance where (1) the only reason for the continuance was to allow new counsel to
enter his appearance and (2) the district court made no attempt to restrain him from
entering the case. 257 Kan. at 1019-20. Similarly, in the instant case Dunn was not barred
by the district court from representing Johnson at trial.


       Accordingly, we conclude the district court did not abuse its discretion by denying
Johnson's fourth motion for a trial continuance.


Issue 4: The district court did not err in denying Johnson's motion for new trial based on
ineffective assistance of counsel.

       Johnson argues the district court abused its discretion by denying his motion for
new trial based on ineffective assistance of counsel. Johnson claims his counsel was
ineffective for: (1) spending a significant amount of time encouraging him to accept a
plea agreement, i.e., apparently making him unprepared for trial; and (2) mishandling
evidence calling into question Griffin's credibility. The State denies counsel was
ineffective.




                                             34
Standard of review


      We use a well-known standard for reviewing alleged performance errors by
counsel: They present mixed questions of fact and law. State v. Cheatham, 296 Kan. 417,
430, 292 P.3d 318 (2013). Consequently, appellate courts review the underlying factual
findings for support by substantial competent evidence and the legal conclusions based
on those facts de novo. State v. Burnett, 300 Kan. 419, 452, 329 P.3d 1169 (2014).


                "To establish ineffective assistance of counsel, the defendant must establish (1)
      that counsel's performance was constitutionally deficient, which requires a showing that
      counsel made errors so serious that his or her performance was less than that guaranteed
      by the Sixth Amendment to the United States Constitution, and (2) that counsel's
      deficient performance prejudiced the defense, which requires a showing that counsel's
      errors were so severe as to deprive the defendant of a fair trial. Cheatham, 296 Kan. at
      431.


                "Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
      counsel is highly deferential and requires consideration of all the evidence before the
      judge or jury. The reviewing court must strongly presume that counsel's conduct fell
      within the broad range of reasonable professional assistance. Harris v. State, 288 Kan.
      414, 416, 204 P.3d 557 (2009). To establish prejudice, the defendant must show a
      reasonable probability that, but for counsel's deficient performance, the outcome of the
      proceeding would have been different. A reasonable probability is a probability sufficient
      to undermine confidence in the outcome. Cheatham, 296 Kan. at 431." Burnett, 300 Kan.
      at 452.


      The district court denied Johnson's request on both the performance and prejudice
prongs of his claim.




                                                    35
Discussion


       At the outset, we observe that Johnson fails to provide any argument in his brief to
support his claim that defense counsel Nichols spent a significant amount of time before
trial encouraging him to accept a plea agreement. Accordingly, it is deemed abandoned.
See State v. Bowen, 299 Kan. 339, 355, 323 P.3d 853 (2014) (when a litigant fails to
adequately brief an issue it is deemed abandoned).


       As for Johnson's argument concerning the alleged mishandling of evidence of
Griffin's credibility, we acknowledge that a counsel's failure to impeach the credibility of
a witness whose testimony is vital to the State's case can prejudice the defendant and
constitute ineffective assistance. State v. Brooks, 297 Kan. 945, 952-54, 305 P.3d 634
(2013). But we also acknowledge that "[t]he decisions on what witnesses to call, whether
and how to conduct cross-examination, . . . and all other strategic and tactical decisions
are the exclusive province of the lawyer after consultation with his or her client." Bledsoe
v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007). "'Strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable.'" State v. Betancourt, 301 Kan. 282, 311, 342 P.3d 916 (2015) (quoting
Rowland v. State, 289 Kan. 1076, 1083, 219 P.3d 1212 [2009]). And defendant bears the
burden of demonstrating that trial counsel's alleged deficiencies were not the result of
strategy. State v. Gleason, 277 Kan. 624, 644, 88 P.3d 218 (2004) (citing Ferguson v.
State, 276 Kan. 428, 446, 78 P.3d 40 [2003]).


       Johnson specifically asserts his counsel's failure to introduce jailhouse recordings
of his recent telephone conversations with Griffin—where she stated the police only
wanted to hear one version of the events of August 21, 2010, i.e., an untruthful version
harmful to Johnson—constitutes ineffective assistance. He contends the State's case
hinged largely on Griffin as the only eyewitness, and Nichols' failure to introduce
evidence "that directly dealt with Griffin's credibility is a deficient trial strategy."

                                               36
       The State responds that the jury clearly knew Griffin's trial testimony was
inconsistent with her statements to police, her preliminary hearing testimony, and her
conversations with Johnson. Among other things, it also points out that Nichols cross-
examined Griffin extensively about her phone calls with Johnson. The State argues the
phone calls could be interpreted as Johnson trying to influence her testimony and Nichols'
opinion that the calls would be harmful was a reasonable, strategic decision.


       Review of the record demonstrates that only a brief exchange from the recorded
conversation on April 15, 2012, was quoted in Johnson's second supplemental motion for
new trial:


       "Luther: were they trying to force you to say what they want you to say?
       "Cerrina: Yeah, pretty much. And I'm muthafuckin' scared (unintelligible) if I could told
       'em, I would of told 'em a long muthafuckin' time ago. (unintelligible) They just want to
       hear what they want to hear, they don't want to hear the truth. They want me to tell 'em
       what they want me to tell 'em." (Emphasis added.)


       Neither the recorded conversations nor the entire transcripts are in the record on
appeal. See State v. Cervantes-Puentes, 297 Kan. 560, Syl. ¶ 3, 303 P.3d 258 (2013)
(party alleging a trial error has the burden of designating a record that affirmatively
shows prejudicial error). Johnson's failure to provide the entire transcript or recording on
appeal clearly hinders this court's analysis. See Gleason, 277 Kan. at 647 (on ineffective
assistance of counsel claim, letters introduced into evidence were not part of record on
appeal, and only portions of those letters were read into the record, two of which are
quoted in the opinion).


       With this in mind, we observe that at the hearing on Johnson's motion for new trial
he testified about this conversation and Nichols' decision not to place its recording into
evidence:
                                                   37
        "[A]fter she [Griffin] said what she said, that I started going off, and he [Nichols] didn't
        want to present it to the jury, because it would make me look like a monster. And I said,
        no, you should play it because they playing with my life. So whatever I say afterwards,
        shouldn't have nothing to do with you playing this tape. Because anybody going to get
        mad if somebody is sitting there telling them that somebody is forcing them to play with
        their life."


        Nichols indeed explained at the same hearing that he reviewed all of the telephone
conversations and concluded they would do more harm than good to the defense. He
testified there were other instances during the conversations where it appeared Johnson
was trying to get individuals to say certain things, and Nichols did not want that to come
out at trial.


        "Q: So the bottom line is you felt like it hurt him more than it would have helped him?
        "A: I did, because [Griffin] never would come out and say that he didn't do this, or that
        she had lied on the stand. It was just a point where she said that 'Everybody wants me to
        say what they want that me to say.' And he said, 'What is the truth, that I didn't do this.'
        And she simply hung up. He asked her, 'Why did you do that today.' And she said, 'I had
        to.' I mean there was no clear admission that she had lied or that she had been influenced
        or anything like that. But on the other hand, there were other instances that it would
        appear that Luther was trying to get other people [to] say certain things, and I did not
        want that to come out in trial." (Emphasis added.)


        Nichols actually cross-examined Griffin about these conversations and highlighted
her statements:


        "Q.      You said you have talked to Luther on the phone since this happened; is that
                 correct?
        "A.      Yes.
        "Q.      Have you talked to him as recently as Sunday?
        "A.      I'm not sure if it was Sunday, but it was here recently.

                                                      38
       "Q.     Okay. Did you ever tell him that the prosecutor didn't want to hear the truth?
       "A.     I said nobody wants to hear the truth. Everybody wants me to say what they want
               to hear and that's what everybody want to hear." (Emphasis added.)


       Further, during Nichols' direct examination of Johnson, his client's testimony
suggested Griffin was being forced to testify like the prosecutor wanted:


       "Q.     Okay. And what has she told you about this case?
       "A.     That they told her they was going to charge her as accomplice if she didn't tell
       him what they—what she wanted to hear.
       "Q.     Okay. And when was the last time you talked to Cerrina about this case?
       "A.     Last night.
       "Q.     Okay. You call her or did she call you?
       "A.     No. I called her. I mean, well, she called my sister first, and my sister told me
       what she told her—and she called my sister and told her that she had to say what she said
       or they were going to charge her.
       "MS. LIDTKE: Objection. Hearsay.
       "THE COURT: Sustained. The jury will disregard the answer."


       Nichols' decision not to introduce the telephone recordings containing information
potentially harmful to Johnson—while still addressing Griffin's credibility through other
means—was a sound strategic decision. We agree with the district court it thus was not
constitutionally deficient performance. See Boldridge v. State, 289 Kan. 618, 637-39, 215
P.3d 585 (2009) (decision by counsel for murder defendant to exclude evidence of
domestic abuse against her did not fall below an objective standard of reasonableness;
such evidence can be a double-edged sword). Even if we assumed Nichols' failure to
introduce these recordings was deficient performance, we also agree with the district
court that Johnson is unable to demonstrate constitutional prejudice, i.e., a reasonable
probability exists the trial outcome would have been different. This conclusion is based
on (1) the fact the substance of the recorded conversation was presented to the jury



                                                   39
through other means and (2) the great amount of evidence of Johnson's guilt presented at
trial. See Burnett, 300 Kan. at 452.


       Accordingly, the district court did not abuse its discretion in denying the motion
for new trial based on ineffective assistance of counsel.

Issue 5: Because there are no errors, cumulative error did not prevent Johnson from
receiving a fair trial.

       Johnson argues the cumulative effect of the errors he raised above, even if
independently harmless, deprived him of a fair trial. But as the State argues, and our
analysis confirms, no errors were committed.


Standard of review

       When considering the cumulative effect of errors, the reviewing court has
unlimited review. State v. Williams, 299 Kan. 1039, 1050, 329 P.3d 420 (2014).


Discussion

       The test for cumulative error is "'"'whether the totality of circumstances
substantially prejudiced the defendant and denied the defendant a fair trial. No prejudicial
error may be found under this cumulative effect rule, however, if the evidence is
overwhelming against the defendant.'"'" Williams, 299 Kan. at 1050 (quoting State v.
Cruz, 297 Kan. 1048, 1073-74, 307 P.3d 199 [2013]).


       Having rejected each Johnson claim of individual error, we necessarily also reject
his claim of cumulative error. See Williams, 299 Kan. at 1051 ("[T]here were no errors to
accumulate, and [defendant's] claim of cumulative error must fail.").



                                             40
Issue 6: Johnson's Sixth and Fourteenth Amendment rights under Apprendi v. New
Jersey were not violated when his sentence was increased based on prior criminal
history.

       Johnson argues the State failed to include his prior convictions in the complaint or
prove those convictions to a jury beyond a reasonable doubt under Apprendi v. New
Jersey, 530 U.S. 466, 477, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The State notes we
have previously rejected such claims. State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781
(2002).


Standard of review


       This court exercises unlimited review over the interpretation of sentencing statutes
and over constitutional questions generally. See State v. Phillips, 299 Kan. 479, 494, 325
P.3d 1095 (2014); State v. Hilt, 299 Kan. 176, 202, 322 P.3d 367 (2014).

Discussion

       Johnson agrees with the State that this court has previously rejected his argument.
See, e.g., Ivory, 273 Kan. at 45-48; see also State v. Fisher, 304 Kan. 242, 264, 373 P.3d
781 (2016); State v. Barber, 302 Kan. 367, 386, 353 P.3d 1108 (2015). Johnson merely
wishes to preserve this issue for federal review, and he offers no new argument to
persuade this court to overrule this precedent. See Barber, 302 Kan. at 386.

                                        CONCLUSION

       The decision of the district court is affirmed.




                                             41
