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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 99,123 STATE OF KANSAS, Appellee, v. RASHAWN T. ANDERSON, Appellant.

SYLLABUS BY THE COURT

1. In any criminal action in which an eyewitness identification is a critical part of the prosecution's case and there is a serious question about the identification's reliability, a cautionary instruction should be given advising the jury about the factors to be considered in weighing the credibility of that eyewitness identification testimony.

2. Jurors should not be instructed that the degree of certainty expressed by the witness at the time of an identification of the defendant is a factor they should weigh when evaluating the reliability of that eyewitness identification testimony. As worded in PIK Crim. 3d 52.20, this factor prompts the jury to conclude that eyewitness identification evidence is more reliable when the witness expresses greater certainty. PIK Crim. 3d 52.20 should be modified accordingly.

3. For an appellate court to determine whether the use of the degree of certainty factor in PIK Crim. 3d 52.20 could have reasonably misled the jury, it must: (a) decide 1

whether an expression of certainty by the eyewitness was communicated to the jury, and if so, (b) the nature and extent of the certainty expressed. If the court determines there was no degree of certainty conveyed by the eyewitness when making the identification, the jury could not have been misled by including this factor in the jury instructions.

4. In closing argument, a prosecutor may comment on admitted evidence as long as the remarks accurately reflect the evidence, accurately state the law, and are not intended to inflame the jury's passions or prejudices or divert the jury from its duty to decide the case based on the evidence and controlling law.

5. Under the facts of this case, a prosecutor's closing argument that suggests a guilty verdict will serve as the deceased victim's "redemption," coupled with a demeaning characterization of the defendant as "a little, little man," constitutes an improper attempt to divert the jury's attention from the evidence and controlling law.

6. A trial court has no duty to sua sponte inquire whether a defendant knowingly and intelligently waives the right to testify once the court learns the defendant will not take the stand in his or her own defense. An express waiver, on the record, is not necessary because a defendant's conduct provides a sufficient basis from which to infer that the right to testify is waived.

7. A cumulative error analysis aggregates all errors and, even though those errors would individually be considered harmless, considers whether their cumulative effect on the trial's outcome is such that collectively they cannot be determined to be harmless. In 2

other words, was the defendant's right to a fair trial violated because the combined errors affected the trial's outcome?

8. In conducting a cumulative error analysis, an appellate court examines the errors in the context of the record as a whole, considering how the district court dealt with the errors as they arose including whether any remedial efforts were effective; the nature and number of errors committed and their interrelationship, if any; and the strength of the evidence. No prejudicial error may be found if the evidence is overwhelming against the defendant.

Review of the judgment of the Court of Appeals in an unpublished opinion filed March 20, 2009. Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed May 11, 2012. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

Shawn E. Minihan, of Kansas Appellate Defender Office, argued the cause, and Carl Folsom, III, of the same office, was on the brief for appellant.

Charles E. Branson, district attorney, argued the cause, and Brenda J. Clary, assistant district attorney, and Steve Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BILES, J.: A jury convicted Rashawn T. Anderson of intentional second-degree murder and reckless aggravated battery for shooting two men on a downtown street in Lawrence following a rap concert. There were several eyewitnesses. The Court of Appeals affirmed his convictions. State v. Anderson, No. 99,123, 2009 WL 793019 (Kan. App. 2009) (unpublished opinion).

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This court granted Anderson's petition for review to consider whether: (1) the jury was improperly instructed to consider the degree of certainty expressed by an eyewitness when determining if an identification was reliable; (2) the State committed prosecutorial misconduct during closing argument; (3) Anderson's constitutional right to testify was violated because the trial court did not inform him of the right and obtain a waiver on the record; and (4) there was cumulative error.

We hold it was error to instruct the jury on the degree of certainty factor from PIK Crim. 3d 52.20 and that the prosecutor committed misconduct during closing arguments. But we affirm Anderson's convictions because the jury could not have been misled by the instruction under the facts in this case and the prosecutor's comments were harmless.

FACTUAL AND PROCEDURAL BACKGROUND

During the early morning hours of February 5, 2006, Robert E. Williams was shot five times and killed. Another person, Pierre C. Burnette, was shot once and survived. A jury convicted Anderson of intentional second-degree murder for killing Williams and reckless aggravated battery for shooting Burnette. We detail the events of the crime because it is necessary for our analysis.

The parties do not dispute that during a rap-music concert, Williams and his wife got into an argument with two women. Security personnel escorted the two women from the event, while Williams and his wife were allowed to stay. After the concert Williams left the building, where he got into a dispute with a man named Avery Peppers.

The concert's promoter filmed the concert and the scene outside afterwards, capturing the argument between Williams and Peppers and some audio of Williams' 4

voice. Portions of this video were admitted at trial and played for the jury, but the video is not included in the appellate record. The shootings at issue were not filmed.

The State conceded that Williams drew a small knife, which the State characterized as a pocketknife, during the confrontation with Peppers. The State's theory was that Williams held the knife discreetly until the two were separated. Williams' wife testified that the scene "calmed down" and the argument ceased quickly, although Williams continued talking loudly as he was pulled away from Peppers.

After the altercation with Peppers, Williams was standing on the sidewalk outside of the club eating nachos with a friend, Anthony Martin. At trial, Martin testified that he saw a man get out of a car and approach them. The man was wearing a heavy brown jacket with a hood that prevented them from seeing his face. Martin further testified that the man raised his right arm and shot at Williams, got back into the car, and then drove off while Martin was running away. After the State played the promoter's video for Martin at trial, he identified a man in the video as the shooter based on the jacket.

The other victim, Burnette, was walking towards his car to leave when he heard the gun shots and began running. One shot hit him in the back, creasing his kidney and lodging in his small intestine. Burnette testified he did not see or hear anything before the shots were fired.

Anderson was later identified as the shooter based on the following circumstantial evidence and eyewitness testimony.

Les Paul, a limousine driver whose vehicle was parked on the street outside the concert, testified that he looked into his rearview mirror after hearing shots and saw a slender man with a pullover hoodie run by and jump into a car parked behind the 5

limousine. Paul described that man as the shooter and testified that two other people were already in the car. He also testified the car's driver appeared to be in a hurry to leave because he screeched the tires and almost struck the limousine as he pulled out. Paul recorded the license plate number, which led police to its three occupants: Anderson, Peppers, and Travis Miller.

Miller, who was the driver of the car Paul described, testified that before the shots were fired he was in the vehicle with Anderson and Peppers. Miller said Anderson got out of the car before Miller heard the gunshots. He said Anderson then jumped back in and Miller drove off, returning to Topeka. Miller testified he asked Anderson something like, "Man, what happened? . . . [y]ou all right?" and Anderson said, "[Y]eah."

Miller at first told the jury that the three men did not discuss the shooting while driving to Topeka, but he later admitted he told prosecutors he had asked Anderson whether he shot Williams, and Anderson denied it. Miller testified further that Anderson's passenger window went down while they were driving to Topeka, but he thought Anderson was "ashing a blunt or something."

Peppers was a passenger in the car and was the same man who had gotten into a confrontation with Williams earlier. He testified that Anderson got out of the car before the shots were fired and returned shortly afterwards. Peppers said the men did not talk about the shooting on the drive to Topeka, but a police detective contradicted this. That officer testified Peppers told him that Anderson admitted sometime during the drive that Anderson had shot Williams and quoted Anderson as saying he had "popped him." Peppers also testified that Anderson rolled down the car window during the drive, but claimed he did not see Anderson throw out a gun. The State attempted to impeach this statement by showing that Peppers had directed the police to a spot along a road where 6

police recovered the gun used in the shooting, along with a DNA sample found on the weapon, which was consistent with Anderson's DNA.

Additional eyewitnesses appeared at trial. Bryce Johnson, a friend who said he considered Williams to be like an uncle, testified he saw the shooting because he heard someone yelling something like "fuck this mother fucker." Then, Johnson said, he watched the shooter run off and get into a nearby vehicle. Johnson said he made eye contact and saw the shooter's face after the shooter ran out of bullets. Johnson described the shooter as a black male with short, braided hair, wearing a brown coat with extra cushion and a hood that had fallen down revealing a hat. Johnson said he recognized the shooter as someone he had seen around but did not know his name.

On cross-examination, Anderson's counsel attempted to impeach Johnson's claim that he saw the shooter by showing Johnson a police report and asking whether he had told police he heard--but did not see--the shooting. Johnson responded that the report was wrong because he had only told police he did not see the shooting of Burnette, the aggravated battery victim. Defense counsel then attempted to impeach Johnson by introducing evidence that Johnson told police he did not know the shooter. In response, Johnson speculated they must have misunderstood his statements and maintained at trial that he had always recognized Anderson but simply did not know his name.

Johnson's testimony also highlighted how police used the promoter's video during the investigation with some of the witnesses from the scene. Johnson explained that police showed him the video and asked him to identify anyone he recognized. Johnson testified that during this viewing he told the officer to stop the video and then pointed out the shooter by stating something like "that's the MF that did it right there."

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Johnson also made an in-court identification of Anderson as the shooter when the State asked whether he recognized the shooter in the courtroom. Johnson said, "[Y]es, sir." The State then asked Johnson to point him out and describe his clothing. Johnson said, "[H]e has a suit on, dark black suit, green shirt. His hair is cut now but that night he had braids." The State then confirmed for the record that Johnson had identified the defendant.

An additional eyewitness, Damon Jones, testified he saw the shooter, who Jones said was wearing a brown coat. Jones testified he was sitting in a van when he saw a young black male walk along the driver's side of the vehicle. He described this individual as wearing a lighter tan Carhartt jacket, who then "threw his hood on" before shooting Williams. Jones testified further that the shooter ran and got into a car parked behind a limousine. Jones then explained how investigating officers played the promoter's video for him and he was able to identify the shooter on that video because of the jacket. During trial, the video was played for Jones again, and he pointed out the shooter on the video, stating, "[R]ight there. [M]an right there." But Jones was not asked to identify Anderson as the shooter in court and did not do so.

Anderson's ex-girlfriend, DeShayla Johnson, was not at the concert, but she testified that Anderson told her the day after the shooting that he "didn't know [he] shot two people," but that he did it because Williams "stepped to his boy and if that was me that he would do the same thing." She also testified that Anderson regularly wore a big and tan waist-length coat prior to the shooting, but she never saw him wearing it again after that.

A detective testified that DeShayla indicated during the investigation that she had seen Anderson's friend, Jamil Fulton, with the jacket after the shooting. Fulton's mother allowed officers to take the jacket after they played her the video, and she agreed the 8

jacket in the video looked like the one her son had. The jacket then was tested for DNA, which showed a partial mixed profile, meaning at least three people contributed to it, with Fulton as the major contributor. The other DNA profiles were insufficient to make a DNA comparison. The jacket was introduced into evidence so the jury could compare it with the coat shown on the promoter's video.

Anderson did not take the stand in his own defense. His counsel disputed the DNA evidence on the gun by cross-examining the lab technician on the technique used to process the evidence in an effort to show the test results were inconclusive. The defense did not call its own expert to contradict the State's DNA testimony. But two witnesses called on Anderson's behalf testified they saw Anderson pick up a gun at someone else's house, but they thought he left the house without the gun.

Following his convictions, Anderson filed a timely appeal to the Court of Appeals arguing: (1) The jury was improperly instructed to consider the degree of certainty expressed by an eyewitness when determining whether the identification was reliable; (2) the State committed prosecutorial misconduct during closing argument; (3) his constitutional right to testify was violated because the trial court did not inform him of that right and get a waiver on the record; and (4) cumulative error. The Court of Appeals held that no error occurred and affirmed his convictions. Anderson, 2009 WL 793019.

Anderson petitioned for this court's review, which we granted on all issues. Our jurisdiction arises under K.S.A. 20-3018(b) (review of Court of Appeals' decision).

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ANALYSIS

(1) The Eyewitness Identification Instruction

Over Anderson's objection, the district court issued the cautionary eyewitness identification instruction from PIK Crim. 3d 52.20 without modification. The PIK instruction states:

"The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he) (she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are: (1) The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting; (2) The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence; (3) Whether the witness had observed the defendant on earlier occasions; (4) Whether a significant amount of time elapsed between the crime charged and any later identification; (5) Whether the witness ever failed to identify the defendant or made any inconsistent identification; (6) The degree of certainty demonstrated by the witness at the time of any identification of the accused; and (7) Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification." (Emphasis added.) PIK Crim. 3d 52.20.

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Anderson argues the district court should have changed the instruction by deleting the sixth "degree of certainty" factor because expressions of certainty by eyewitnesses have been criticized as unreliable by the scientific community. Anderson targets the testimony of Jones and Bryce Johnson with this argument because those witnesses, he contends, were "very confident" in their identifications.

Standard of Review

When a party objects to an instruction at trial, this court examines whether it properly and fairly states the law as applied to the facts of the case and could not have reasonably misled the jury. In making this determination, appellate courts consider the instructions as a whole and will not isolate any one instruction. State v. Appleby, 289 Kan. 1017, 1059, 221 P.3d 525 (2009). The use of PIK instructions is not required, but it is strongly recommended unless the facts in a particular case require modification. In those instances, the trial court should not hesitate to make alterations. State v. Tully, 293 Kan. 176, 197, 262 P.3d 314 (2011).

Analysis

This court addressed a similar challenge to PIK Crim. 3d 52.20 in State v. Mitchell, 294 Kan. __, (No. 99,163 this day decided). In Mitchell, we summarized our prior caselaw treating eyewitness identifications with care and adopting the cautionary eyewitness identification instruction as a procedural safeguard. We reaffirmed in Mitchell that district courts are required to issue a cautionary instruction whenever an eyewitness identification is a critical aspect of the prosecution's case and there are serious questions about the identification's reliability. 294 Kan. at ___ (slip op. at 8) (citing State v. Warren, 230 Kan. 385, 391, 635 P.2d 1236 [1981]). 11

Also in Mitchell, this court noted that the scientific literature on eyewitness certainty remained inconclusive. We held the degree of certainty factor, as worded in PIK Crim. 3d 52.20, should not be included in jury instructions because it prompts the jury to conclude that eyewitness identification is more reliable when the witness expresses greater certainty. 294 Kan. __, Syl.

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