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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,512 STATE OF KANSAS, Appellee, v. GREGORY L. BERRY, Appellant.

SYLLABUS BY THE COURT 1. The standard of review governing denial of a motion to dismiss depends on the ground on which dismissal was sought. When insufficient evidence is argued, we view the evidence in the light most favorable to the prosecution to determine whether a rational factfinder could find the defendant guilty beyond a reasonable doubt.

2. Lesser included offense jury instructions are governed by K.S.A. 22-3414(3). It directs that instructions must be given when there is some evidence that would reasonably justify a conviction of some lesser included crime.

3. When a party claims K.S.A. 22-3414(3) requires giving an instruction on a lesser included crime, the analysis focuses on the evidence supporting the lesser offense.

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4. The judicially created felony-murder instruction rule requires lesser included offense instructions only when evidence of the underlying felony is weak, inconclusive, or conflicting. The analysis focuses on the evidence supporting the underlying felony and not the evidence supporting lesser offenses.

5. K.S.A. 22-3414(3) does not exclude felony murder from its mandate and makes no exception for the felony-murder instruction rule regarding lesser included offense instructions.

6. After reviewing the felony-murder instruction rule's historical development, we conclude its use should cease. K.S.A. 22-3414(3) should be applicable to felony murder. Instructions on the lesser degrees of homicide are proper in felony-murder cases when there is some evidence reasonably justifying a conviction of some lesser included crime beyond a reasonable doubt. Language to the contrary in previous opinions is disapproved.

7. A new rule for conducting criminal prosecutions is to be applied to all cases, state or federal, pending on direct review or not yet final. A conviction generally is not considered final until (a) the judgment of conviction is rendered; (b) the availability of an appeal is exhausted; and (c) the time for any rehearing or final review has passed.

Appeal from Sedgwick District Court; JOHN J. KISNER, Jr., judge. Opinion filed July 22, 2011. Reversed and remanded.

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Heather R. Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, 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.: Gregory L. Berry directly appeals his conviction and sentence for firstdegree felony murder. Berry struck and killed another motorist during a high-speed getaway from a traffic stop. He was apprehended, and cocaine was discovered. The underlying felony for the first-degree felony-murder conviction was possession of cocaine. At trial, Berry requested lesser included offense instructions for second-degree reckless murder, involuntary manslaughter, and vehicular homicide. His request was denied pursuant to the judicially created felony-murder instruction rule, which treats felony murder differently when considering whether to instruct a jury on lesser included offenses. See State v. Jones, 287 Kan. 547, 556-57, 198 P.3d 756 (2008). We have jurisdiction under K.S.A. 22-3601(b)(1) (direct appeal for conviction of an off-grid crime; life sentence).

We reverse Berry's conviction and sentence on the felony-murder charge and remand for a new trial because we hold the judicially created felony-murder instruction rule must be abandoned. We do so after carefully reviewing the rule's history and concluding that the rationale for adopting it was flawed. We hold that the better course is to follow K.S.A. 22-3414(3)--the statute governing when lesser included offenses must be issued. That legislative mandate provides no exception for felony murder and makes no allowance for the felony-murder instruction rule. We explain our decision below.

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FACTUAL AND PROCEDURAL BACKGROUND

A jury convicted Berry of felony murder, possession of cocaine, and driving while a habitual violator. He pleaded no contest to criminal possession of a firearm. These convictions stem from a chain of events beginning at 1:45 a.m. on November 25, 2004, when a Sedgwick County Sheriff's Deputy driving a marked patrol vehicle spotted a dark-colored Cadillac Berry was driving. The deputy observed what he believed to be an illegitimate 30-day license tag on the vehicle. The Cadillac pulled into a motel parking lot before the deputy could initiate a stop. The deputy waited out of view for the Cadillac to continue down the street. When the Cadillac exited the parking lot, the deputy followed.

Both cars turned and traveled about a block before the deputy activated his patrol car's emergency lights. The Cadillac pulled over. The deputy exited his vehicle and approached. He examined the 30-day tag more closely. It appeared to be legitimate. The deputy then went to the driver's side window and asked Berry for his driver's license and insurance. Berry did not respond verbally. He looked around, put his vehicle into drive, and sped away. The deputy then ran back to his vehicle and pursued Berry with the patrol car's emergency lights and siren activated.

The deputy testified at trial that his vehicle's speed reached 70 miles per hour, which was still not enough to overtake Berry, who kept pulling further ahead. Eventually, the deputy slowed and deactivated his lights and siren because he knew a nearby bar was about to close. The deputy said he was concerned the high-speed chase would endanger the departing patrons, so he hoped turning off his emergency equipment would cause Berry to slow down. The deputy lost sight of the Cadillac for 30 to 45 seconds, but then saw a large plume of smoke and dust near an approaching intersection. When the deputy arrived, he saw the aftermath of a collision involving the Cadillac and a Chrysler driven by Vicki K. Brown. The Chrysler was struck on the passenger-side door, with the driver trapped inside. Brown died from injuries sustained in the accident. 4

When a second deputy arrived at the scene, he saw Berry, who had exited his vehicle and was wearing a black coat, running out of a ditch. Berry collided with the second deputy's vehicle, struck the side mirror, but continued to evade police. A short time later, Berry barged into Fernando Mendoza's house uninvited. He did not know Mendoza or his family. Mendoza testified Berry said he needed a place to rest, displayed a "big ole wad of money," and offered to pay to stay there. Berry told Mendoza the police were after him and that he was a drug dealer. Mendoza's family called police. When Berry was apprehended, he was not wearing a black coat.

Berry consented to a medical assessment to determine if he was injured. He was taken to a hospital, examined, and released to another deputy. But as Berry stood up from the examining table and turned to be handcuffed, a clear plastic bag containing a white rock-like substance fell from his boxer shorts, landing on the floor between his legs. The bag held 9.31 grams of cocaine. A second clear plastic bag with white rocks was found by a K-9 unit searching in a field near where the unit's dog identified Berry's trail. The second bag contained 1.8 grams of cocaine. At another location in the field, a black coat was found. Footprints also were visible, with the trail ending at Mendoza's house.

Berry was charged with: (1) first-degree felony murder based on the underlying felonies of possession of cocaine with intent to sell or, in the alternative, possession of cocaine; (2) aggravated burglary; (3) felony obstructing official duty; (4) possession of cocaine with intent to sell; (5) possession of cocaine; (6) criminal possession of a firearm; and (7) driving while a habitual violator. Before trial, Berry filed a motion to dismiss the felony-murder charge based on two premises. First, Berry argued the victim's death was not within the res gestae of the alleged cocaine possession. He claimed that crime was complete before the car chase began, so the victim's death did not occur during commission of a felony as required by

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the felony-murder statute. See K.S.A. 21-3401(b). Second, Berry argued there was no causal connection with the accident because at the time Berry's car struck and killed the victim, the deputy had abandoned pursuit and Berry was no longer running from police. The motion was overruled. Subsequent motions on the same grounds for judgment of acquittal were denied twice more. One occurred at the close of the State's case and the other at the conclusion of all the evidence.

The jury convicted Berry of felony murder, possession of cocaine, and driving while being a habitual violator. He pled no contest to criminal possession of a firearm. He was acquitted of aggravated burglary for the Mendoza home intrusion, felony obstructing official duty, and possession of cocaine with intent to sell. He was sentenced to life imprisonment, with a mandatory minimum of 20 years for the felony-murder conviction. He received a consecutive 15-month sentence for possession of cocaine. The remaining sentences ran concurrently to the felony-murder sentence. Berry filed a timely appeal but failed to properly docket it, resulting in its dismissal. The district court later held a hearing under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982) (recognizing limited exceptions to permit untimely completion of appeal), and found Berry entitled to continue with his appeal.

Berry raises nine issues: (1) whether there was sufficient evidence of a direct causal connection between the cocaine possession and the killing to support the felonymurder charge; (2) whether Berry was entitled to jury instructions on lesser included offenses of felony murder; (3) whether the district court was required to issue an additional instruction on causation for felony murder; (4) whether the district court improperly restricted Berry's closing argument; (5) whether the prosecutor committed misconduct by misstating the law on causation during closing arguments; (6) whether Berry preserved for appeal an ineffective assistance of counsel claim; (7) whether the district court erred by failing to raise sua sponte an ineffective assistance of counsel

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inquiry; (8) whether cumulative error deprived Berry of his right to a fair trial; and (9) whether Berry's sentence was unconstitutional because his criminal history score was not proven to the jury.

We address first Berry's claim that the felony-murder charge should have been dismissed before trial because there was insufficient evidence of a causal connection between the traffic fatality and the underlying felony (possession of cocaine). We decide that issue against Berry. Next we consider whether the jury should have been instructed on lesser included offenses. Our decision to abandon the felony-murder instruction rule in favor of following K.S.A. 22-3414(3) resolves that decision in Berry's favor and renders moot the remaining issues. But we will discuss briefly his arguments relating to his request for an additional causation instruction and the prosecutor's closing argument because it may be helpful on retrial. Additional facts are included below as required.

SUFFICIENCY OF THE EVIDENCE

Berry argues first that the district court erred by denying his pretrial motion to dismiss the felony-murder charge. He contends there was insufficient evidence of a causal connection between the traffic fatality and the cocaine possession charge.

K.S.A. 21-3401(b) defines felony murder as "the killing of a human being committed . . . in the commission of, attempt to commit, or flight from an inherently dangerous felony, as defined in K.S.A. 21-3436." Possession of cocaine is an inherently dangerous felony. See K.S.A. 21-3436(a)(14) (any felony under K.S.A. 65-4160); K.S.A. 65-4160(b) (person has prior conviction under this section or substantially similar offense and possesses drug listed in K.S.A. 65-4107). We note K.S.A. 21-3436 has since been amended, and K.S.A. 65-4160 has been repealed and replaced with K.S.A. 2010 Supp. 21-36a06.

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The felony-murder statute requires two causation elements. First, the death must be within the res gestae of the underlying crime, regardless of the sequence of events leading to the death. State v. Beach, 275 Kan. 603, 609-10, 67 P.3d 121 (2003) (citing State v. Jacques, 270 Kan. 173, 189-90, 14 P.3d 409 [2000]). We define res gestae in the felony-murder context as "acts done before, during, or after the happening of the principal occurrence when those acts are so closely connected with the principal occurrence as to form, in reality, a part of the occurrence." State v. Jackson, 280 Kan. 541, 545, 124 P.3d 460 (2005). Second, there must be a direct causal connection between the felony and the homicide. Beach, 275 Kan. at 612. Our case law finds this direct causal connection exists unless an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death. 275 Kan. at 612.

In his motion to dismiss, Berry argued the fatality was not within the res gestae of the cocaine possession. He claimed the cocaine possession was complete before the death occurred. He also argued there was insufficient evidence of a causal connection because at the time Berry's car struck the victim's vehicle, the deputy had abandoned pursuit and Berry was no longer running from police.

But Berry did not couch this argument in terms of an intervening or superseding event. He simply argued there was no causal connection because he claims the officer quit the chase before the killing. Berry recites no evidence to support his assertion that he was no longer running from police or that the police were no longer pursuing him. The only evidence in the record is that the officer deactivated his emergency lights and sirens in the hope that Berry would slow to a safer speed.

No doubt recognizing this weakness now on appeal, Berry abandons the res gestae claim and solely argues there was insufficient evidence to make a causal connection between the cocaine possession and the fatality. And in doing so, he offers this court a different theory from what he advanced to the district court. He contends now it was his 8

decision to evade the traffic stop that was the legal cause of the victim's death and this decision was unrelated to the cocaine possession. To support this, Berry notes he fled after the officer requested his driver's license and insinuates his effort to escape was to avoid being caught while driving on a suspended license--not because he possessed more than 11 grams of cocaine.

Standard of Review

The standard of review for denial of a motion to dismiss depends on the ground on which dismissal was sought. When insufficient evidence is the basis alleged, our review "asks whether review of all the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. Garcia, 282 Kan. 252, 259-60, 144 P.3d 684 (2006).

Discussion

A defendant can avoid responsibility for a death occurring during the commission of a felony "'if an extraordinary intervening event supersedes the defendant's act and becomes the sole legal cause of death.'" Beach, 275 Kan. at 612 (quoting State v. LaMae, 268 Kan. 544, 555, 998 P.2d 106 [2000]). In this context, the three factors examined are time, distance, and the causal relationship between the underlying felony and the killing. 275 Kan. at 613. Two prior cases dealing with sufficiency of evidence of a causal connection are relevant: Beach, 275 Kan. at 611-14, and Jackson, 280 Kan. at 546-49. We detail both cases below to explain our rationale in denying Berry's argument.

In Beach, the defendant was convicted of felony murder based on the underlying felony of sale of methamphetamine. The defendant coordinated the sale. She drove a companion and the supplier to a house where the transaction was to take place. Then, 9

Beach met the victim and led him back to that location. Beach took the money for the drugs from the victim and walked up to the house. Then she heard her companion shoot the victim and another person. Beach left with the shooter. Beach later claimed she did not know her companion was planning to shoot the victim. She argued the plan and actions of her companion and the supplier caused the victim's death, so their decision to kill the victim was an extraordinary intervening event.

In analyzing the three factors, the Beach court held the time criteria was satisfied because the two events took place simultaneously. The distance factor was satisfied because the defendant chose the location for the drug transaction and the victim waited there in the car for her to complete it. The court then found the events were causally related--the third factor--because Beach told the shooter about the drug sale and that the victim was carrying a lot of cash. The court reasoned that "[a] person with a large amount of cash intent on engaging in an illegal transaction is a foreseeable target of violent crime." 275 Kan. at 614.

The facts in Jackson are very similar. Jackson's felony-murder conviction was based on the underlying felony of selling cocaine. The victim contacted a third party looking for drugs. That person contacted Jackson, who secured the drugs through two other persons. Jackson then picked up the drug suppliers and suggested they meet the victim at a house. When they could not enter, the victim and one of the suppliers got into a fight, and the victim was shot and killed. To avoid the felony-murder charge, Jackson argued the supplier's act of shooting the victim was an extraordinary intervening event that broke the causal connection between the drug transaction and the murder. Citing Beach, the Jackson court rejected that argument. It found the time factor supported conviction because the victim was shot while the victim and the supplier were in the process of completing the drug transaction. It found the distance factor satisfied because a conversation regarding the transaction occurred a few feet from the shooting. As to the causal relationship, the court noted the defendant arranged the drug transaction and was 10

aware selling drugs was a dangerous business in which most people carry guns. The court held the violence was foreseeable and the jury could infer a causal connection. 280 Kan. at 548-49.

Turning to the facts here, it is immediately apparent the posture is different. In Berry's case, the underlying felony is drug possession (not sale) and Berry was the only participant. But the time and distance factors still support conviction. The time factor is satisfied because Berry had the cocaine in his possession when the accident happened. The distance factor is satisfied because the accident and possession occurred at the same location. The causal connection factor is also clear because it is foreseeable that a person possessing more than 11 grams of cocaine would attempt to flee from law enforcement officers. See, e.g., State v. Anderson, 281 Kan. 896, 899, 136 P.3d 406 (2006) (Defendant attempted to flee from police on foot before arrest and tried to discard baggies of drugs near a dumpster and hide others in his shoe.); State v. Le, 260 Kan. 845, 845-46, 926 P.2d 638 (1996) (Defendant attempted to flee a traffic stop and was later found in possession of marijuana.). To be sure, there is foreseeable danger when engaging in a high-speed motor vehicle chase with law enforcement officers. See, e.g., State v. Johns, 237 Kan. 402, 403, 699 P.2d 538 (1985) (Fatality collision resulted from defendants attempting to elude police after committing an armed robbery.); see also Sykes v. United States, No. 0911311, 2011 WL 2224437, at *7 (U.S. 2011) (Risk of violence and physical injury are inherent in vehicle flight.).

Put simply, it belies common sense to argue Berry's decision to flee the traffic stop was limited to just one of his crimes and not the others. There is no evidence to reasonably determine Berry's flight was due to the driver's license violation to the exclusion of the more serious crimes involved here. We find it reasonable for a jury to conclude Berry fled because of all his crimes: the suspended license, illegal possession of a firearm, and possession of cocaine. And considering his attempts to discard and hide the cocaine after the accident and his statement to Mendoza that he was a drug dealer, a 11

rational factfinder, based on all the evidence viewed in a light most favorable to the prosecution, could have concluded that Berry fled the deputy and initiated a dangerous high-speed car chase specifically to avoid being caught with a substantial quantity of cocaine. We find the evidence sufficient to support the causal connection required for the felony-murder conviction.

LESSER INCLUDED OFFENSES FOR FELONY MURDER

Berry next argues he was entitled to instructions on the lesser included offenses of second-degree reckless murder, involuntary manslaughter, and vehicular homicide. He concedes the evidence of the underlying felony (possession of cocaine) is strong, but asserts he still was entitled to the lesser included offense instructions because the jury could have found no causal connection between the felony and the killing. The State responds that under the applicable test used in determining whether lesser included offense instructions are required in a felony-murder case, the evidence of the felony must be weak, inconclusive, or conflicting to justify giving those instructions. The State argues the evidence of the felony is strong. The district court overruled Berry's request.

Standard of Review

Our initial inquiry is whether the court-made felony-murder instruction rule violates K.S.A. 22-3414(3). Interpretation of a statute is a question of law, and the standard of review is unlimited. State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).

Discussion

K.S.A. 22-3414(3) directs trial courts to issue lesser included offense instructions "where there is some evidence which would reasonably justify a conviction of some 12

lesser included crime." Under that statute, the analysis focuses on the evidence supporting the lesser offense, and evidence of the higher offense is considered only in determining whether that evidence would allow a jury to reasonably convict of a lesser included offense. We have held in nonfelony-murder cases that the statute triggers lesser included offense instructions upon the request of the defendant, if the jury could reasonably convict the defendant of the lesser included offense based on the evidence presented. State v. Houston, 289 Kan. 252, 273-74, 213 P.3d 728 (2009).

Notably, K.S.A. 22-3414 does not exclude felony murder cases from its jury instruction requirements. And despite the statute's provisions, felony-murder cases have not followed the statutory model. Instead, these cases have been analyzed under a courtmade rule, commonly referred to as the felony-murder instruction rule. See State v. Becker, 290 Kan. 842, 856-57, 235 P.3d 424 (2010) (holding the statute governing lesser included offense instructions does not apply to felony murder); State v. Jones, 287 Kan. 547, 558, 198 P.3d 756 (2008) (Johnson, J., dissenting).

Under the felony-murder instruction rule, lesser included offense instructions have been required only when evidence of the underlying felony is weak, inconclusive, or conflicting. State v. Hoffman, 288 Kan. 100, 105, 200 P.3d 1254 (2009). To determine if the evidence is strong or weak, appellate courts have considered whether a reasonable trier of fact could determine the felony was committed beyond a reasonable doubt. If so, the evidence of the felony is not deemed weak or inconclusive. State v. Dixon, 289 Kan. 46, 63, 209 P.3d 675 (2009). But if evidence of the underlying felony is weak, the court has examined whether enough evidence exists to support a conviction for a lesser included offense. Jones, 287 Kan. at 557.

The court-made felony-murder instruction rule has its detractors. See Jones, 287 Kan. at 558 (Johnson, J., concurring) ("The felony-murder [instruction] rule turns the [ordinary nonfelony-murder] analysis on its head by focusing on the evidentiary support 13

for the charged crime, rather than looking at the evidence to support the lesser included crime."); Note, Felony Murder in Kansas--The Prosecutor's New Device: State v. Goodseal, 26 Kan. L. Rev. 145, 155 (1977).

Acknowledging this criticism, as well as the clarity provided by K.S.A. 223414(3), we take the opportunity presented by Berry's arguments to revisit this courtmade rule. At its conclusion, our review shows the prior analysis leading to the felonymurder instruction rule is flawed. We find that lesser included offense instructions in felony-murder cases must be issued as directed by the statute and the case law applying its provisions. To explain our reasoning, we explore the early case law leading to the emergence of the current felony-murder instruction rule. We next apply our conclusion to Berry's case and then address how other cases still pending or not yet final are affected by our holding.

(1) Early case law

Since 1868, trial courts have been statutorily required in all criminal cases to instruct juries on "all matters of law which are necessary for their information." G.S. 1868, ch. 82,

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