1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,957

STATE OF KANSAS,

Appellee,

v.

MICHAEL A. REED,

Appellant.

SYLLABUS BY THE COURT

1.

When an issue of criminal restitution has been left open by a sentencing judge and 

the defendant files a notice of appeal before the restitution issue is fully settled, the notice 

of appeal is premature and lies dormant until final judgment is pronounced in district 

court and the appeal process begins. Such a procedure does not deprive the appellate 

court of jurisdiction.

2.

Under subsection (b) of K.S.A. 21-3436, an alleged aggravated battery must be 

"so distinct" from the alleged felony murder it supports so "as to not be an ingredient of 

the homicide." The question of whether such a distinction exists is one of law for the 

court, not one of fact for the jury. A criminal defendant is not entitled to an instruction 

telling his or her jurors that they must make a specific finding on the existence or 

nonexistence of the distinction, and the absence of such an instruction does not entitle the 

defendant to an appellate ruling that the two offenses merged.
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3. 

Because the question of whether an underlying alternative offense and a felony 

murder are so distinct that merger is prevented is one of law for the court, a defendant's 

challenge to the sufficiency of evidence to persuade a jury on that point is without merit. 

4.

A challenge to the sufficiency of evidence to support an alternative underlying 

offense for felony murder is waived or abandoned if not raised in an appellate brief.

5.

A district court judge does not err in refusing to give a criminal defendant's 

requested voluntary intoxication instruction when the evidence shows mere consumption 

of alcohol, not resulting impairment of the ability to form the requisite criminal intent.

6.

When the State raises specific legal issues, arguments, or theories during pretrial 

proceedings on the admissibility of evidence—thus giving a district judge an opportunity 

to rule on these issues, arguments, and theories as well as on those relied upon by the 

defense—and the defendant invokes the pretrial proceedings when renewing his or her 

objection to admission of the evidence at trial, the issues, arguments, and theories raised 

initially by the State are preserved for review if pursued by the defendant on appeal. 

7.

A district judge does not err under the Confrontation Clause of the Sixth 

Amendment nor under K.S.A. 60-460(e) when he or she admits evidence of an out-ofcourt declarant's statements, if the district judge has not abused his or her discretion in 

identifying the statements as dying declarations. On the record in this case, there was no 

abuse of discretion: The district judge employed the correct legal standard; had 
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substantial competent evidence to support his factual findings; and issued a ruling that 

was not arbitrary, fanciful, or unreasonable.

8. 

The cumulative error doctrine does not apply when multiple errors have not been 

identified. 

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed July 10, 2015.

Affirmed. 

Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, argued the cause, and Catherine A. 

Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, was with him on the brief for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER J.: Defendant Michael Reed appeals his first-degree felony-murder 

conviction, arising out of the shooting death of Vincent Barnes. Reed raises several 

instructional issues, a sufficiency of the evidence challenge, and a hearsay challenge. He 

also asserts entitlement to reversal because of cumulative error. For its part, the State 

questions whether this court has jurisdiction to consider Reed's appeal in the first place. 

As detailed below, we hold that we have jurisdiction over Reed's appeal, but none 

of his arguments lead to the relief he seeks. 
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FACTUAL AND PROCEDURAL BACKGROUND

On the night of May 15, 2009, Reed; Reed's brother, Robert; and Jeremy Trout 

went to a bar for an impromptu bachelor party for Robert. The three men drank beer and 

had several shots of liquor. After about an hour, Reed and Trout left to meet Reed's 

girlfriend, who was going to give them some money. 

Reed called Barnes in an attempt to purchase cocaine. Trout would later testify 

that "the guy [Reed] called had owed him from a past deal. I think [Reed] was trying to 

get some more, and towards the tab, and take it off his tab or whatever. But the guy ended 

up hanging up." Although Reed called Barnes back several times, Barnes never 

answered. 

After obtaining the money, Reed and Trout returned to the bar. Trout would later 

testify that Reed told Robert "that the guy had hung up [on him], and he felt like he was 

trying to punk him." 

A short time later, the trio left the bar and spent about 30 minutes at Reed's house.

Reed then decided to try to buy cocaine from a man named Stacie. The group drove to 

two separate bars to look for Stacie, but never found him. 

Reed then drove the group to Barnes' apartment. When they knocked, Barnes' 

sister, Alexia, answered the door. Reed was the first to enter, followed by Trout, and then 

Robert. Trout would eventually testify that "[Reed] was just talking to [Barnes]. Just, you 

know, why did you hang up on me, I thought we was friends, and just conversation like 

that." According to Trout, at that point, "Robert, he starts ranting and raving, [h]anging 

up on my brother, man, trying to punk my bro." Alexia's eventual testimony would be 
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similar: When Robert came in, he "was yelling, why are you hanging up on my brother 

like that?" and then began to argue with Barnes and pulled out a gun. 

Robert fired a shot into the ceiling of the apartment. Barnes told Alexia to call the 

police. As she started to walk out of the apartment to do so, Robert held the gun to her

head and said, "Call the cops, you bitch." Meanwhile, Trout grabbed Barnes and Reed 

began punching Barnes. Eventually Robert joined in, and Alexia left the apartment. At 

some point, Robert shot Barnes in the stomach from "very close" range. 

Exactly who remained in the apartment at the time Barnes was shot would be 

disputed at trial. Alexia said she was running back up a set of stairs toward the apartment 

when she heard the shot and saw Reed, Robert, and Trout run out of the apartment. But 

both Robert and Trout would testify that neither Reed nor Trout was in the apartment 

when Robert shot Barnes. 

After the shooting, Alexia found Barnes' cell phone and looked at his last call, 

which was from a person listed on the phone as "Micky Norms." Alexia would testify at 

trial that she asked Barnes who shot him, "if it was—in the phone it was Micky Norms. 

And I was like, Did Micky shoot you, did Micky shoot you. And he said, Yes." 

Christopher Marceau and Daniel Gumm were the first police officers to reach the 

scene. For safety reasons, the officers parked their patrol cars outside of the apartment 

complex and walked in. They could hear a man yelling for an ambulance. 

When the officers found Barnes, they attempted to put pressure on his wound. 

Marceau would testify that he asked Barnes who shot him. According to Marceau, Barnes 
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"stated the first name Micky several times. Then he [stated] Micky Norms or Micky 

North. Micky was clear, I could hear he was saying [] Micky. And then the Norm or 

North was not as clear, probably because of Vincent not—he stated that he wasn't able to 

breathe very well. And so that last part, Norms or North, I could not hear very well." 

A third officer, Jason Newberry, also would testify that Barnes identified the 

shooter as "Mickie or Nicky." In addition, when Newberry asked Barnes, Barnes told him 

it was "a .38, which was pretty specific. So I backed up. And I asked him, revolver or 

semiautomatic. He says, revolver .38." 

Ambulance workers put Barnes on a stretcher, but Newberry would testify that 

"between the time they get to the top of the stairs and down the stairs, [Barnes] had quit 

struggling and he didn't look . . . like he was breathing [anymore]." Barnes was identified 

"code blue" in the ambulance and pronounced dead at the hospital. 

Investigators examined Barnes' phone and found a contact for "Mickie Norms 

Buddy." They learned that the number associated with this contact was attributed to Reed 

and that Barnes had received one connected call from that number on the night of his 

death. The one call was followed by a series of missed calls from the same number. 

Reed, Robert, and Trout were arrested the day after Barnes' death. Reed was 

charged with first-degree felony murder, based either on possession of cocaine or on

aggravated battery, and with aggravated assault of Alexia. 

The State filed a pretrial motion in limine to admit the statements Barnes had 

made before his death, both to his sister and to first responders. After hearing arguments 

on the issue, the district judge ruled that Barnes' statements qualified as admissible dying 

declarations. Specifically, the district judge said:
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"Vincent Barnes' statements are reliable, they are voluntary. The evidence—there's no 

evidence of any coercion. In fact, the evidence is to the contrary. . . . [Barnes'] statements 

are the result of a question by an officer and his—and his sister, but there's no pressure 

applied other than the fear of death. So I believe they are voluntary. I believe they are in 

good faith. I think the evidence supports no bad motive by [Barnes]. There's no evidence 

that he was acting on bad information. And so I believe that my ruling would be that his 

statements are voluntary and in good faith. So the next element is: Was [Barnes] 

conscious of his impending death and did he believe there was no hope of recovery? I 

look at Officer Newberry. He testified the facts of the situation when he discovered them, 

that when he—he heard a black male yell—what turned out to be a black male yelling for 

help. And [Barnes] would have been right under that person yelling for help, and so that 

would have added to the stress and added to the belief that he was about to die. There was 

blood on his abdomen. This is all from Newberry. There was blood on the floor and 

entry. The black male, the friend, was applying pressure. [Barnes] tried to get up. There's 

no question he was conscious. He was able to identify a .38 revolver and the name 

Mickey. He had difficulty speaking, difficulty breathing, he was coughing up blood, he 

was very 'panicked,' and he knew he had been shot. Officer Marceau confirmed all of 

that, but added that [Barnes] was on his knees at one point. He was swaying and 

staggering, trying to get up. There was blood coming out of the wound. [Barnes] 

specifically said 'I can't breathe' and also confirmed he was panicky. EMS . . . said that he 

was writhing in pain and was in, quote, a lot of pain. That [Barnes] was very upset. 

Quote, pretty much hysterical. In 16 minutes from the dispatch, [Barnes] was Code Blue 

and died. So we have a very short time from gunshot to actual death. There appears to be 

no question in my mind that the facts support that he was conscious and very aware of his 

impending death and he had no hope of recovery. I'm ruling that [Barnes'] statements 

come in based upon dying declaration. They are a dying declaration. And that is 

regardless of whether or not they are testimonial." 

The district judge also ruled, in the event that the Confrontation Clause applied, see 

Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), that 

Barnes' statements were not testimonial and could also have been admitted under the 
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excited utterance exception to the hearsay rule. The district judge rejected the State's 

argument that Barnes' statements should be admissible under the doctrine of forfeiture by 

wrongdoing, in other words, because Reed's behavior prevented Barnes from being able 

to testify. 

At the conclusion of Reed's trial, the district judge provided the jury with the 

following first-degree felony-murder instruction:

"In Count One, Michael Reed is charged with the crime of Murder in the First 

Degree - Felony Murder. Michael Reed pleads not guilty.

"To establish the charge, each of the following claims must be proved:

"1. That Michael Reed or another killed Vincent Barnes;

"2. That such killing was done while in the commission of, 

attempting to commit, or in flight from committing or 

attempt to commit Possession of Cocaine or Aggravated 

Battery; and

"3. That this act occurred on or about the 15th day of May, 

2009 in Sedgwick County, Kansas.

"The elements of Possession of Cocaine are as follows:

"1. That Michael Reed possessed cocaine;

"2. That Michael Reed did so intentionally; and

"3. That this act occurred on or about the 15th day of May, 

2009 in Sedgwick County, Kansas.
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"The elements of Aggravated Battery are as follows:

"1. That Michael Reed intentionally caused bodily harm to 

another person in any manner whereby great bodily 

harm or death can be inflicted OR intentionally caused 

physical contact with another person in any manner 

whereby great bodily harm or death can be inflicted; 

and;

"2. That this act occurred on or about the 15th day of May, 

2009 in Sedgwick County, Kansas." 

The district judge also instructed the jury on intentional second-degree murder and 

voluntary manslaughter as lesser included offenses of first-degree felony murder. Reed 

had requested, but was denied, instructions on unintentional second-degree murder and 

involuntary manslaughter. 

Reed had also requested a voluntary intoxication instruction based on evidence of 

his intoxication and the intoxication of his brother. The district judge refused the request, 

saying, "[T]here was little to no evidence of—I would say no evidence of intoxication 

. . . . There certainly was evidence of drinking, that he had shots or beer. But there was no 

additional, no evidence to the level of intoxication." 

The jury returned guilty verdicts on both first-degree felony murder and 

aggravated assault. The district judge sentenced Reed to life in prison for the felony 

murder and to a consecutive 18 months for the aggravated assault. The judge did not rule 

on the State's request for $5,000 in restitution during Reed's November 10, 2011, 

sentencing hearing because the defense sought additional time to review the State's 

documentation for the request. The judge agreed to leave the issue of restitution open and 

scheduled an additional hearing for December 16, 2011. Reed filed his notice of appeal 
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on November 16, 2011, while the issue of restitution was still pending in the district 

court. According to the district court record, the judge later filed an "Order Regarding 

Restitution." 

JURISDICTION

We first briefly address the jurisdictional challenge raised by the State in its brief.

Relying on State v. Hannebohn, 48 Kan. App. 2d 921, Syl. ¶ 3, 301 P.3d 340 

(2013), abrogated by State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014), the State argues 

that a defendant's sentence is not final if restitution has been ordered but no amount has 

been set. According to the State, because the district judge's journal entry of judgment 

left the issue of restitution open, Reed's notice of appeal was premature and could not 

endow this court with jurisdiction.

"Whether appellate jurisdiction exists is a question of law over which this court 

exercises unlimited review." State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).

In Hall, we rejected Hannebohn to the extent that "it implies that a notice of 

appeal filed before a restitution amount has been set presents an appellate jurisdictional 

bar to review of the amount." Hall, 298 Kan. at 988. Instead, this court held "that, in a 

criminal matter, where judgment is effective once pronounced from the bench, a 

premature notice of appeal that seeks review of a conviction and sentencing yet to be 

completed lies dormant until final judgment including the entire sentence is pronounced 

from the bench," at which point the notice of appeal becomes effective. 298 Kan. at 988.
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At oral argument, the State conceded that Hall is the current controlling caselaw. 

The fact Reed filed his notice of appeal before restitution was finalized did not deprive 

this court of jurisdiction over Reed's appeal.

MERGER OF AGGRAVATED BATTERY AND FELONY MURDER

Felony murder is 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 and amendments thereto." K.S.A. 21-3401(b). For felonies listed under subsection 

(b) of K.S.A. 21-3436, including aggravated battery, the felony must be "so distinct from 

the homicide alleged . . . as to not be an ingredient of the homicide alleged." Reed argues 

on appeal that the district judge erred by failing to instruct the jury that it must make a 

specific finding whether "the underlying felony of aggravated battery was so 'distinct 

from the homicide alleged . . . as to not be an ingredient of the homicide alleged.'"

Without such a finding, he asserts, we cannot avoid the conclusion that the aggravated 

battery and the felony murder offenses merged.

Our review of a jury instruction issue follows a four-step progression: 

"'(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).'" State v. Story, 300 Kan. 702, 710, 334 P.3d 297 (2014).
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Reed does not cite any authority to support one of the supporting pillars of his 

argument on this issue, i.e., that his suggested instruction was legally appropriate. He 

directs us to no precedent demonstrating that the question of whether a predicate felony is 

distinct from a homicide is one of fact for the jury rather than one of law for the court. 

Our research has revealed that, to the degree Kansas precedent exists, it defeats Reed's 

challenge. See State v. Sanchez, 282 Kan. 307, 316, 144 P.3d 718 (2006) (distinction 

between underlying aggravated battery, felony murder analyzed as legal question calling 

for interpretation of K.S.A. 21-3436[b][6]). 

And we note that other jurisdictions have typically treated the question of merger 

as a question of law. See Barnett v. State, 783 So. 2d 927, 929 (Ala. Crim. App. 2000) 

(whether felonious assault resulting in victim's death merges with homicide treated as 

matter of law); People v. Sarun Chun, 45 Cal. 4th 1172, 1178, 203 P.3d 425 (2009)

(certain crimes merge with felony-murder as matter of law); People v. Morgan, 197 Ill. 

2d 404, 447, 758 N.E.2d 813 (2001) (whether forcible felonies merge with felony murder 

treated as question of law); State v. Heemstra, 721 N.W.2d 549, 558 (Iowa 2006)

(whether act causing willful injury merges with act that causes victim's death examined 

as matter of law).

Based on these authorities, Reed's jury instruction-based challenge is completely 

without merit. We need not reach the ultimate merits question of whether, as a matter of 

law, the aggravated battery here was "so distinct from the homicide alleged . . . as to not 

be an ingredient of the homicide." This question has not been raised before us. However, 

lest we encourage a later frivolous claim by way of a K.S.A. 60-1507 motion, we note 

that the fatal shooting of Barnes at close range by Robert was unquestionably distinct in

method and in principal perpetrator from the beating being administered by Reed and 

Trout. 
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SUFFICIENCY OF EVIDENCE FOR ALTERNATIVE MEANS

Reed attempts to challenge the sufficiency of the evidence to support both of the 

alternative means for felony murder, i.e., the alternative underlying crimes of aggravated 

battery and possession of cocaine. 

"In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), this court explained:

"'"In an alternative means case, where a single offense may be 

committed in more than one way, there must be jury unanimity as to guilt 

for the single crime charged. Unanimity is not required, however, as to 

the means by which the crime was committed so long as substantial 

evidence supports each alternative means."'

"'Because jury unanimity is not required as to the means by which an alternative 

means crime is committed, unanimity instructions are not required in alternative means 

cases.' Rojas-Marceleno, 295 Kan. at 544 [, 285 P.3d 361 (2012)]. Nevertheless, the State 

must meet a 'super-sufficiency of the evidence' requirement, i.e., present sufficient 

evidence to permit a jury to find each means of committing the crime beyond a 

reasonable doubt. Rojas-Marceleno, 295 Kan. at 544. If the State fails to present 

sufficient evidence to support each means, reversal is required. Rojas-Marceleno, 295 

Kan. at 544." State v. Newcomb, 296 Kan. 1012, 1014, 298 P.3d 285 (2013).

Specifically, Reed asserts that the evidence was inadequate to demonstrate to the 

jury that the aggravated battery and the felony murder did not merge. We have explained 

above that Reed's argument in this regard rests on a categorization of the question as one 

for the jury rather than for the court. Merger raises a question of law, not a question of 

fact. Reed's challenge to the sufficiency of evidence on the alternative means of 

aggravated battery thus fails.
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Regarding the alternative means of possession of cocaine, Reed's argument comes 

too late. He made no effort to challenge the sufficiency of the evidence in support of this 

alternative underlying felony in his brief, mentioning it only at oral argument before this 

court. The issue is thus deemed waived or abandoned. See State v. Boleyn, 297 Kan. 610, 

Syl. ¶ 10, 303 P.3d 680 (2013) (failure to brief issues waives, abandons it).

LESSER INCLUDED OFFENSE INSTRUCTIONS

Reed next argues that the district judge should have instructed the jury on seconddegree unintentional murder and involuntary manslaughter as lesser included offenses of

felony murder. 

This issue is without merit under current caselaw. See State v. De La Torre, 300 

Kan. 591, 602, 331 P.3d 815 (2014). After the parties filed their briefs in this case, we 

decided State v. Todd, 299 Kan. 263, 278-79, 323 P.3d 829 (2014). In Todd, this court 

held that the legislature's amendment of the felony-murder statute to eliminate its lesser 

included offenses applied retroactively, "preventing appellate argument that a district 

court erred in failing to instruct on any lesser included offenses of felony murder." De La 

Torre, 300 Kan. at 602.

VOLUNTARY INTOXICATION INSTRUCTION

Reed's other challenge to the jury instructions focuses on the district judge's

refusal to give a requested voluntary intoxication instruction. 

A voluntary intoxication instruction is not required "[u]nless the State or the 

defendant presents sufficient evidence showing intoxication to the extent of impairing the 

ability to form the requisite intent." State v. Betancourt, 299 Kan. 131, 141, 322 P.3d 353 
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(2014). "'This court will not infer impairment based on evidence of consumption alone.'" 

State v. Hilt, 299 Kan. 176, 193, 322 P.3d 367 (2014) (quoting State v. Hernandez, 292 

Kan. 598, 607, 257 P.3d 767 [2011]). "Loss of memory or inability to remember events 

before or during the offense may show an inability to form intent. See State v. Minski,

252 Kan. 806, 811-12, 850 P.2d 809 (1993)." Betancourt, 299 Kan. at 141. "[E]vidence 

that the defendant is so impaired that he or she has lost the ability to reason, to plan, to 

recall, or to exercise motor skills as a result of voluntary intoxication" can compel a jury 

instruction. 299 Kan. at 141-42.

In this case, Reed relies primarily on the evidence of alcohol consumption earlier 

in the evening. In addition, he argues that he "indicated that he did not remember where 

he went immediately after the offense in his interview with law enforcement." This 

argument is based on the testimony of the detective who interviewed Reed after he was 

arrested. But the detective's testimony, when read in context, does not support a 

significant failure of Reed's memory—alcohol-induced or otherwise. The detective said: 

"[Reed] comes down, gets in the Jeep. And they drive—they—he doesn't remember 

where they went, they went somewhere nearby and kind of sat there for a little []while, 

anticipated what should they do. Didn't know—at that point, he says he didn't know if 

[Barnes] had been hurt. And so they kind of thought out what they were going to do. And 

then, after a while, they went home." 

In fact, this passage demonstrates that Reed apparently was able to remember what 

transpired at the unknown location. The evidence Reed relies on is not sufficient to 

establish anything beyond his mere consumption. 

Reed also makes the further argument that, because the jury was instructed that he

could be convicted as an aider and abettor, a voluntary intoxication instruction was 

warranted because of the intoxication and impairment of the principal, Robert. But we 
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need not reach the intriguing legal questions raised by this argument on the record of this 

case. As with the evidence on Reed himself, the evidence about Robert was limited to 

mere consumption. That was not enough to support a voluntary intoxication instruction. 

VICTIM'S OUT-OF-COURT STATEMENTS

Reed also asserts three interrelated grounds for error in admitting Barnes' hearsay 

statements: (1) the district judge erred by concluding that the statements qualified as 

dying declarations; (2) the admission of a dying declaration violated Reed's confrontation 

rights; and (3) the district judge erred in admitting the statements as excited utterances 

because the hearsay exception's applicability does not excuse the reversible 

Confrontation Clause violation. 

We review a district judge's decision on the admission of hearsay evidence for an 

abuse of discretion. State v. Robinson, 293 Kan. 1002, 1023, 270 P.3d 1183 (2012). 

"'Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable, 

in other words, if no reasonable person would have taken the view adopted by the trial 

court; (2) is based on an error of law, in other words, if the discretion is guided by an 

erroneous legal conclusion; or (3) is based on an error of fact, in other words, if 

substantial competent evidence does not support a factual finding on which a prerequisite 

conclusion of law or the exercise of discretion is based. [Citation omitted.]' State v. 

Warrior, 294 Kan. 484, 505, 277 P.3d 1111 (2012)." State v. Burnett, 300 Kan. 419, 436, 

329 P.3d 1169 (2014).

If the issue is whether the trial court complied with specific statutory requirements for 

admitting evidence or whether an evidentiary ruling violated a defendant's constitutional 

rights, our review is de novo. Robinson, 293 Kan. at 1023.
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As a preliminary matter, the State argues that Reed should be limited on appeal to 

his district court argument based on the Sixth Amendment. The State invokes State v. 

King, 288 Kan. 333, 349, 204 P.3d 585 (2009) ("K.S.A. 60-404 dictates that evidentiary 

errors shall not be reviewed on appeal unless a party has lodged a timely and specific 

objection to the alleged error at trial.") and State v. Bryant, 272 Kan. 1204, 1208, 38 P.3d 

661 (2002) (hearsay objections in district court inadequate to preserve Confrontation 

Clause argument for appeal). 

We acknowledge that Reed's argument to the district judge centered on the

Confrontation Clause, but the State raised the dying declaration and excited utterance 

issues in its motion supporting admission of Barnes' hearsay statements, and the district 

judge specifically discussed whether these exceptions had been satisfied in his ruling. At 

trial, Reed objected when Marceau began to testify about what Barnes had said to him. 

Reed's counsel said, "Because of prior hearings may I have a running objection[?]" This 

reference to prior hearings gave the district judge another opportunity to reconsider the 

pretrial rulings on all three grounds Reed advances on appeal. This satisfied one of the 

important purposes of the contemporaneous objection rule, and we are satisfied that 

Reed's trio of appellate hearsay arguments are preserved for our review. 

Hearsay is any statement "which is made other than by a witness while testifying 

at the hearing, offered to prove the truth of the matter stated." K.S.A. 60-460. "The 

admissibility of hearsay is governed either by the federal and state Constitutions or by 

statute, depending on the type of hearsay at issue." Robinson, 293 Kan. at 1024. Typically 

the relevant constitutional law is that developed under the federal Sixth Amendment 

Confrontation Clause. It provides that "the accused shall enjoy the right . . . to be 

confronted with the witnesses against him [or her]." The Confrontation Clause bars 

admission of testimonial hearsay. Michigan v. Bryant, 562 U.S. 344, 354, 131 S. Ct. 

1143, 179 L. Ed. 2d 93 (2011); Davis v. Washington, 547 U.S. 813, 823-24, 126 S. Ct. 
18

2266, 165 L. Ed. 2d 224 (2006); Crawford, 541 U.S. at 68; see also Robinson, 293 Kan. 

at 1024. Generally, if a statement is found to be testimonial "it must be excluded unless a 

court finds that the declarant is unavailable as a witness and that the defendant had a prior 

opportunity to cross-examine the declarant." 293 Kan. at 1024. Both the United States 

Supreme Court's Sixth Amendment jurisprudence and the applicable Kansas statute, 

however, recognize that dying declarations merit special handling. Under Crawford, the 

United States Supreme Court left open the possibility that a defendant's constitutional 

right to confront witnesses did not necessitate exclusion of a dying declaration. See 

Crawford, 541 U.S. at 56 n.6; State v. Jones, 287 Kan. 559, 566, 197 P.3d 815 (2008) 

(discussing Giles v. California, 554 U.S. 353, 128 S. Ct. 2678, 171 L. Ed. 2d 488 [2008] 

[statement that satisfies statutory requirement of dying declaration exception to hearsay 

prohibition admissible even if defendant has not had opportunity to cross-examine 

declarant]). Under K.S.A. 60-460(e), "[a] statement by a person unavailable as a witness 

because of the person's death [is admissible] if the judge finds that it was made (1) 

voluntarily and in good faith and (2) while the declarant was conscious of the declarant's 

impending death and believed that there was no hope of recovery."

Given the analytical equation of the federal constitutional and state statutory 

standards for which out-of-court statements qualify as dying declarations, Reed's brief 

focuses on whether there was an adequate factual basis for a finding that Barnes was 

conscious of his impending death and believed there was no hope of recovery at the time 

he made his statements. Barnes' voluntariness and good faith are unquestioned. 

According to Reed, testimony that Barnes "tried to sit up or stand up" shows Barnes to be 

something other than "[a]n individual who believes [he is] dying" because such an 

individual "would submit to care as opposed to trying to walk away from those who were 

providing medical care to him." Reed also notes that there was no testimony that police 

officers or emergency medical personnel explicitly informed Barnes that he was dying. 
19

Reed's factual argument all but ignores the district judge's specific findings and his 

explicit references to the evidentiary support for them: 

"Was [Barnes] conscious of his impending death and did he believe there was no hope of 

recovery? I look at Officer Newberry. He testified the facts of the situation when he 

discovered them, that when he—he heard a black male yell—what turned out to be a 

black male yelling for help. And [Barnes] would have been right under that person 

yelling for help, and so that would have added to the stress and added to the belief that he 

was about to die. There was blood on his abdomen. This is all from Newberry. There was 

blood on the floor and entry. The black male, the friend, was applying pressure. Vincent 

tried to get up. There's no question he was conscious. He was able to identify a .38 

revolver and the name Mickey. He had difficulty speaking, difficulty breathing, he was 

coughing up blood, he was very 'panicked,' and he knew he had been shot. Officer 

Marceau confirmed all of that, but added that Vincent was on his knees at one point. He 

was swaying and staggering, trying to get up. There was blood coming out of the wound. 

Vincent specifically said 'I can't breathe' and also confirmed he was panicky. EMS—or 

the EMS Fahrenbruch . . . he said that he was writhing in pain and was in, quote, a lot of 

pain. That Vincent was very upset. Quote, pretty much hysterical. In 16 minutes from the 

dispatch, Vincent was Code Blue and died. So we have a very short time from gunshot to 

actual death. There appears to be no question in my mind that the facts support that he 

was conscious and very aware of his impending death and he had no hope of recovery." 

We do not reweigh evidence on review, see State v. Lewis, 299 Kan. 828, 835, 326 

P.3d 387 (2014), as Reed evidently expects. On the record before us, it cannot be said 

that the district judge's decision to allow testimony about Barnes' out-of-court statements 

as dying declarations was "arbitrary, fanciful, or unreasonable." Given this ruling, we 

need not discuss Reed's further argument about the Confrontation Clause or the Kansas 

statute on excited utterances. 
20

CUMULATIVE ERROR

Reed's final argument on appeal is that cumulative error requires reversal of his 

convictions. Because we have not identified multiple errors, the doctrine of cumulative 

error analysis is inapplicable. See State v. Cameron, 300 Kan. 384, 400, 329 P.3d 1158 

(2014). 

CONCLUSION

Defendant Michael Reed's convictions and sentences for first-degree felony 

murder and aggravated assault are affirmed.