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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 100,768 STATE OF KANSAS, Appellee, v. CHRISTOPHER TAHAH, Appellant.

SYLLABUS BY THE COURT 1. K.S.A. 22-3414(3) is applicable as written to felony murder: jury 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.

2. In a criminal proceeding, while 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.

3. A district court judge must evaluate the totality of facts and circumstances in a given criminal proceeding to determine whether the defense's proffered evidence effectively connects the third party to the crime charged.

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4. When the trial court grants a pretrial motion to admit evidence, the losing party must still object to the admission of the evidence at the time it is offered during trial to preserve the issue for appeal.

5. A defendant cannot object to the introduction of evidence on one ground at trial then assert another ground on appeal.

6. When reviewing a challenge to the admission of a defendant's confession the appellate court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard.

7. Allegations of prosecutorial misconduct require a two-step analysis. First, the appellate court must determine whether the comments were outside the wide latitude allowed in discussing the evidence. Second, the appellate court must decide whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial, thereby requiring reversal. Appellate courts apply the test to prosecutorial action in contexts beyond mere comments on the evidence.

Appeal from Ford District Court; E. LEIGH HOOD, judge. Opinion filed September 30, 2011. Reversed and remanded.

Ryan J. Eddinger, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

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Natalie K. Randall, assistant county attorney, argued the cause, and Terry J. Malone, county attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.: A jury convicted Christopher Tahah of felony murder and the underlying felony: discharge of a firearm at an occupied dwelling resulting in great bodily harm. The court sentenced him to prison without the possibility of parole for 20 years for the felony-murder conviction and 102 months for the underlying felony, with the sentences to run consecutively. Our jurisdiction of his direct appeal is under K.S.A. 22-3601(b)(1), conviction of an off-grid crime.

The issues on appeal and our accompanying holdings are as follows:

1.

Did the district court err in refusing to give a lesser-included offense instruction on second-degree unintentional murder and involuntary manslaughter? Yes.

2. 3.

Did the district court erroneously exclude third-party evidence? No. Did the prosecutor commit reversible misconduct during closing argument? Harmfulness of error not required to be addressed because of reversal and remand on other grounds.

4.

Did the district court err in admitting evidence under K.S.A. 60-455? Not preserved for appeal.

5.

Was Tahah's confession voluntary? Not preserved for appeal.

FACTS Christopher Tahah was an officer with the Dodge City Police Department. In December 2006, Tahah met Erin Jones and they began to date. He would occasionally

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spend the night at Jones' house, and he moved some of his personal items into her house. The two vacationed together as well.

On April 9, 2007, Jones sent Tahah a text message that said something was bothering her and told him to check his email. Jones' email stated that she did not feel they were compatible and that she wanted to end the relationship. Tahah was blindsided and hurt by the news. The next day, he moved his belongings out of Jones' house.

A few days later, on April 13, Tahah saw Jones riding in a truck with an unknown male. Tahah testified that he contemplated following them but went home instead. Around 11:30 p.m., Tahah went to Jones' house. Tahah testified that he did not think she would answer the front door so he used the code that opened the garage door, walked through the garage, and entered the house.

According to Tahah, Jones was scared by his entry, but she eventually calmed down. Tahah entered Jones' house to get an explanation for the break up, and she explained they broke up because she felt they were sexually incompatible and because he snored.

One of Jones' friends, Vanessa Weber, stated that Tahah's April 13 entry into Jones' house greatly affected Jones. According to Weber, Jones told her it was "the scariest night of her life." After the incident Weber would help Jones search the house to make sure no one was hiding inside. Jones also changed the garage code.

According to Tahah, several weeks later on May 4, he drank alcohol while helping a friend paint a house in the early evening. Around 9:30 p.m., Tahah and several friends went barhopping. They eventually stopped at the Central Station bar where Tahah saw Jones dancing with another man. This sight upset Tahah, and he and his friends left the bar for another. Around 1:30 a.m. the next morning, Tahah left his friends at the bar and
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returned to his apartment. Tahah stated that he consumed alcohol at every bar he entered that night.

Weber testified that she was with Jones for most of May 4. According to Weber, they attended a Dodge City Legends' basketball game that evening through tickets Jones received from a member of the Legends, Elvin Mims. Jones had recently met Mims and was communicating with him through the internet website "MySpace" and by exchanging text messages. Around 11:30 p.m., Weber and Jones went to Central Station where Jones ran into another friend, Jason Carpenter. Jones had a few drinks with Carpenter and danced with him a couple of times. Jones and Weber then returned to Jones' house, and Weber left around 3:20 a.m. the next day.

Around noon, Weber entered Jones' backyard because Jones had not responded to phone calls. After seeing that the window on Jones' bedroom door was broken, Weber called 911. Authorities would later learn that Jones was inside and dead from a single gunshot to the head.

According to Tahah, on May 5, the day of Jones' death, he woke up around 12:45 p.m. Around 4 p.m., Sergeant Slickers of the Dodge City Police Department arrived at Tahah's apartment along with KBI Agents Jason LaRue and Mark Kendrick. The KBI officials took Tahah's service weapon and then conducted their first of three interviews.

During the May 5 interview, the KBI agents informed Tahah that Jones was dead. Tahah cried upon hearing the news. Agent LaRue testified that during the interview Tahah stated that he had considered revenge on Jones but that he never acted on it.

KBI officials prohibited Tahah from reentering his apartment and secured a search warrant. The officers then searched Tahah's apartment on May 6 and May 11. They seized several items including one Winchester .270 Rifle, a single Winchester "Short
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Mag" .270 shell casing stored in a "Chinese puzzle box," and a dark ski mask. After searching Tahah's trash, the officers recovered two more Winchester Short Mag .270 shell casings, several pieces of dark clothing, and shoes. Once the officers finished searching Tahah's apartment on May 6, he was allowed to return home.

The next day, May 7, Tahah spoke during a second interview with KBI officials LaRue and John Nachtman at his apartment. They questioned Tahah about his relationship with Jones. After the interview, Tahah decided to "get out of Dodge."

Tahah drove to Denver, Colorado. According to his trial testimony, Tahah did not eat and contemplated suicide multiple times. On May 11, Tahah "made a decision to come back to Dodge to try to explain myself to the agents." Because Tahah did not have enough gas to make the return trip, he stole a hotel guest's idling Hummer.

While Tahah was driving the stolen Hummer east on Interstate 70 towards Limon, Colorado, Colorado State Patrol officers signaled him to pull over because On-Star was tracking a stolen Hummer on I-70. Tahah pulled over and searched the Hummer for his expandable baton to carry out his suicide plan by attacking the officers and forcing them to shoot him. Because Tahah was unable to find the baton, however, he drove off. After the Hummer eventually stopped again, Tahah exited and a foot chase ensued. According to Tahah, he tried to act like he was carrying a gun so the police would shoot him. Instead, he was tackled and arrested.

After he was arrested, Tahah informed Sgt. Hilferty of the Colorado State Patrol that he was a murder suspect in Dodge City and that he wanted to talk. According to Hilferty's trial testimony, Tahah stated that he murdered his ex-girlfriend the previous Friday with a .270 Winchester. Tahah then produced a written confession to that effect.

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Once KBI agent Kendrick was notified Tahah was in custody, he drove to Colorado and interviewed Tahah for the third time. In this videotaped interview, Tahah stated that he had lain in wait in Jones' backyard and had aimed his rifle at her house. He stated that the rifle discharged when he was lowering it.

At trial, however, Tahah testified that his confessions to the Colorado and Kansas authorities were untrue. He denied being present at Jones' house that night and stated that he confessed merely to give Jones' family closure.

The jury found Tahah guilty of felony murder and criminal discharge of a firearm. The district court sentenced him to a hard 20 for the felony-murder conviction that was to run consecutive to the 102 months for the underlying felony of criminal discharge of a firearm conviction.

Additional facts will be added as necessary to the discussion below.

ANALYSIS

Issue 1: The district court erred in not including a lesser included offense instruction to felony murder. Tahah argues that the district court erred by denying his requests for a lesser included offense instruction on second-degree unintentional murder and involuntary manslaughter.

Standard of Review

K.S.A. 22-3414(3) directs courts to issue lesser included offense instructions "where there is some evidence which would reasonably justify a conviction of some
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lesser included crime." Historically, however, felony-murder cases have not followed the statutory rule but have been analyzed under a court-created rule commonly known as the "felony-murder rule." See, e.g., State v. Hoffman, 288 Kan. 100, Syl.

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