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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 104,266

STATE OF KANSAS,

Appellee,

v.

DARREN KNOX, 

Appellant.

SYLLABUS BY THE COURT

1.

The justification of self-defense is not available to a person who initially provokes 

the use of force unless he or she has exhausted every means to escape from imminent 

danger or has communicated the good-faith intent to terminate the use of force.

2.

Even if an appellate court presumes the district court erred in failing to give an 

unrequested instruction, the error is not reversible if, as here, the complaining party fails 

to firmly convince the appellate court that the jury would have reached a different verdict 

had the instruction error not occurred. 

3.

A prosecutor's statements during closing argument that a witness was "brutally 

honest" and "was on the stand telling you the truth" state the prosecutor's personal 

opinion as to the credibility of a witness and are misconduct.

4. 

A prosecutor commits misconduct by arguing facts not in evidence.
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5.

A prosecutor's statement that suggests the goal and purpose of a criminal defense 

attorney is to take bystanders who happen to witness a crime and portray them as 

deceptive and dishonest demeans both the adversarial process and defense counsel's role 

in that process, and it is misconduct.

6.

Under the facts of this case, the prosecutor's misconduct does not warrant reversal 

of the defendant's conviction because the misconduct was not gross and flagrant, was not 

motivated by ill will, and would likely have had little weight in the minds of jurors in 

light of the strength of the evidence.

7.

Evidence of a third party's motive will be excluded for relevance where nothing 

else connects the third party to the crime.

8.

The failure to make a proffer of excluded evidence precludes appellate review if 

there is no other basis in the record to determine whether the district court erred in 

excluding the evidence.

9.

When faced with a cumulative error allegation, an appellate court exercises 

unlimited review over the totality of the circumstances in the case and determines 

whether the cumulative effect of multiple errors substantially prejudiced the complaining 

party so as to deny a fair trial. If any one error is constitutional, the party benefitting from 
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the multiple errors must establish the cumulative error is harmless beyond a reasonable 

doubt.

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed April 10, 2015. 

Affirmed. 

Rachel L. Pickering, assistant public defender, 3rd J.D., argued the cause and was on the brief for 

appellant.

Jennifer L. Myers, special assistant district attorney, argued the cause, and Christopher L. 

Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney 

general, were on the brief for appellee.

The opinion of the court was delivered by

LUCKERT, J.: A jury convicted Darren Knox of premeditated first-degree murder 

under K.S.A. 21-3401(a). In this direct appeal from that conviction, he raises six issues, 

which we have reordered. None of the issues presents reversible error. We hold: 

(1) Knox was not entitled to an instruction on self-defense because the evidence, 

even when viewed in the light most favorable to Knox, established Knox's use of deadly 

force was not legally justified. Rather, Knox provoked the confrontation; 

(2) The district court did not commit clear error by failing to instruct on seconddegree intentional murder. In light of the strong evidence of premeditation, Knox does 

not firmly convince us the jury would have returned a different verdict had the instruction 

been given; 
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(3) While the prosecutor committed misconduct during closing arguments by 

vouching for the credibility of some witnesses, discussing facts not in evidence, and 

disparaging the defense, the statements did not deny Knox a fair trial; 

(4) The district court did not err in excluding evidence suggesting a third party 

might have had a motive to commit the murder because no evidence connected a third 

party to the crime; 

(5) Knox did not make a sufficient proffer to preserve his argument that the district 

court violated his confrontation rights by limiting cross-examination of a State witness; 

and 

(6) The one presumed instructional error and the several instances of prosecutorial 

misconduct did not cumulatively deprive Knox of a fair trial. 

FACTS AND PROCEDURAL BACKGROUND

On August 3, 2008, around 1 p.m., Krystal Fears was in the upstairs bedroom of 

her house when she heard what she thought were fireworks. She ran to the window. 

Outside, three young men were walking down the street shooting at the passenger side of 

a white Mustang that had pulled into the driveway of a house across the street. The driver 

of the Mustang was Fears' friend, Lafayette Morris. Morris tried to exit the car and run, 

but he collapsed from a mortal gunshot wound. The three men ran up the street, and Fears 

ran out of her house to help Morris. 

Fears initially told detectives that two of the three men were shooting at Morris' 

Mustang but later she could not remember how many men had fired shots. During Knox's 

first trial, which ended in a hung jury, Fears testified to seeing Morris with a gun firing 
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back at the three men. But she did not remain consistent on this point. In Knox's second 

trial, she testified that Morris did not have a gun. Investigators never found a handgun in 

Morris' possession or on the scene. 

Fears' sister was also home when the gunshots began. She too looked out her 

upstairs window to see three men in the street. She only remembered seeing one man fire 

a gun at Morris' car, and she could not recall what the other two men were doing or if 

they had weapons.

Fears' mother heard the gunshots from the downstairs kitchen and ran to the front 

door. She told investigators that she saw two young men in the street; one was shooting at 

Morris and the other was running. She saw Morris get out of his Mustang and fall as he 

tried to run.

At the scene, investigators found Morris' body lying in a pool of blood near the 

driver side of the Mustang. A subsequent autopsy revealed that a fatal 9mm bullet had 

entered the right side of Morris' chest, collapsed both of his lungs, and came to rest in the 

soft tissue of his left arm. The Mustang had three bullet holes in its passenger side 

window and three bullet holes in its passenger side quarter panel. Outside the Mustang on 

the passenger side, investigators collected three fired .40 caliber cartridges and four fired 

9mm cartridges. There were no bullet holes on the driver side, no fired cartridge cases 

inside the Mustang, and no fired cartridge cases outside the Mustang on the driver side.

Less than 2 weeks after Morris' murder, an acquaintance of Morris', Darrius

Freeman, told his probation officer that he was being shot at and threatened; he wanted to 

document who was after him in case he had to defend himself. Freeman said that after 

Morris' murder, "RonRon" called him and told him, "We got your boy Laffy [Lafayette 

Morris], now you and Shookie next." The probation officer referred Freeman to a police 
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detective. Although Freeman talked to the detective about the phone call, he would not 

disclose any information about Morris' murder because he did not want to be a "snitch." 

The record does not clearly establish whether Freeman or investigators knew "RonRon's" 

legal name at that point, but at the second trial the jury heard a recorded conversation in 

which Knox identified himself by using that nickname.

A little over a month after Freeman's initial report to his probation officer and the 

detective, Freeman decided to provide additional information about Morris' murder. The 

change of mind occurred after Freeman was charged with federal crimes and reached a 

plea agreement that obligated him to cooperate with the investigation of Morris' murder. 

According to Freeman's statement, on the day of Morris' murder, Freeman heard gunshots 

as he left a house located about a block from where Morris was shot. Freeman hid on the 

side of the house. After the shots stopped, he saw one of his longtime enemies—Chris 

Holliday—and three other men—Mack Calhoun, Casey Ellis, and "RonRon"—holding 

guns and running to a nearby orange Avalanche SUV. Freeman recognized the vehicle as 

belonging to Holliday. The Avalanche was parked in front of a white truck that Freeman 

knew belonged to another enemy, Darren Allen. After the men entered the vehicles, they 

drove away. Freeman also informed police that the orange Avalanche was painted black 

soon after. And law enforcement did later pick up a black Avalanche, which clearly used 

to be orange that contained Holliday's identifying information. Although Freeman picked 

others out of photographic lineups, he was unable to identify Knox.

Armed with the new information from Freeman, investigators went back to Fears, 

who was less than eager to cooperate further. When detectives finally obtained an 

interview with her, they showed her a black and white lineup that included Knox's picture 

and asked if she could identify the primary shooter. She asked to see the photographs in 

color, and from the color lineup she identified Knox as the primary shooter. At trial, the 

defense attacked the credibility of this identification because Fears had labeled Calhoun 
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as the primary shooter in a previous photographic lineup. Moreover, Fears had testified 

prior to trial that officers "hinted" at which photograph she should pick, though she 

clarified that she only meant that the officers told her Knox's name after she had picked 

his photograph. Fears' mother also picked Knox out of the same color lineup. But Fears' 

sister could not identify anyone from any lineup. 

By the time investigators linked Knox to Morris' murder, Knox was incarcerated 

on not-yet related charges. He had been arrested about a week after Morris' murder for 

unlawful possession of a .40 caliber Taurus pistol. That charge arose when Kansas City 

police officers searched an SUV incident to a traffic stop. The officers found the Taurus 

pistol directly below the back passenger seat occupied by Knox. Subsequent ballistics

testing revealed that the .40 caliber cartridges found at the scene of Morris' murder were 

fired from that Taurus pistol.

The State charged Knox with premeditated first-degree murder. Prior to trial, the 

State filed two motions in limine; one seeking to prohibit evidence of drugs and guns that 

had been found in the house at which Morris was shot and another seeking to prohibit 

evidence of drugs and a rifle found stashed between the center console and passenger seat 

of Morris' Mustang. After a hearing on the motions and over defense objection, the 

district court granted the motions in limine, finding the evidence not relevant or probative 

to the case. 

Knox and Calhoun were originally tried in November 2009 as codefendants, but 

the trial ended in a mistrial after the jury could not come to a verdict. Knox's second 

trial—without Calhoun as codefendant—began in December 2009. Fears, the State's first 

witness, expressed hostility throughout her trial testimony. She testified that she was 

frustrated, did not want to be involved, and did not cooperate with police. She also 

admitted that her testimony was inconsistent at points—inconsistencies the defense 
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readily elicited. Freeman testified as well, and the defense questioned him extensively on 

the plea agreement that led to his cooperation in this case. Also, Freeman equivocated 

when defense counsel asked him whether he knew "RonRon's" last name before law 

enforcement officers told him. When asked why it took him so long to come forward with 

information, Freeman testified that he wanted to get Morris' murderers himself, but once 

incarcerated he knew that could not happen. Fears' mother and sister also testified, mostly 

corroborating Fears' version of events but differing in some details. In addition, the State 

called various law enforcement officers and forensics experts. Knox presented one 

witness after the State rested, a man who took photographs and measurements of the 

location of the murder (about a year after the murder) to provide the jury with the 

witnesses' viewpoints and show the distances involved.

During the instruction conference, Knox requested a self-defense instruction based 

on the fact that no witnesses saw the shooting begin; he argued that Morris could have 

fired the first shot. But the district court denied the request. After deliberations, the jury 

found Knox guilty of premeditated first-degree murder. Subsequently, the district court 

sentenced Knox to life in prison without the possibility of parole for 25 years. 

Knox timely appealed to this court, and jurisdiction is proper under K.S.A. 22-

3601(b)(1) (life sentence imposed). 

ANALYSIS

Issue 1: Was Knox entitled to his requested instruction on self-defense? 

Knox argues the district court erred when it denied his request for an instruction 

on self-defense. In arguing the instruction should have been given, Knox focuses on the 

lack of direct evidence regarding who fired the first shot and emphasizes Fears' testimony 
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at the first trial in which she stated that she saw Morris shooting at the three men. 

Although she contradicted that testimony during Knox's second trial, Knox's attorney 

cross-examined her with her earlier testimony. On appeal, Knox argues the jury could 

reasonably have believed he acted in self-defense. 

1.1 Standard of review and analytical framework

Because Knox requested a self-defense instruction, a four-step analysis applies to our 

consideration of his arguments. Those four steps and the standards of review that correspond to 

each are:

"(1) First, the appellate court should consider the reviewability of the issue from both 

jurisdiction and preservation viewpoints, exercising an unlimited standard of review; 

(2) next, the court should use an unlimited review to determine whether the instruction 

was legally appropriate; (3) then, the court should determine whether there was sufficient 

evidence, viewed in the light most favorable to the defendant or the requesting party, that 

would have supported the instruction; and (4) finally, if the district court erred, the 

appellate court must determine whether the error was harmless, utilizing the test and 

degree of certainty set forth in State v. Ward, 292 Kan. 541, 256 P.3d 801 (2011), cert. 

denied 132 S. Ct. 1594 (2012)." State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 

(2012). 

1.2 Parties focus on step three; instruction was not factually supported

In applying those steps in this appeal, the parties focus on the third step—whether 

the instruction was factually appropriate. Nevertheless, we must examine each step. 

Regarding the first step, as we have already stated and as the parties agree, we have 

jurisdiction over Knox's appeal. Further, Knox preserved this issue by requesting a selfdefense instruction. The parties are also correct that a self-defense instruction would have 

been legally appropriate. See K.S.A. 21-3211(b) (permitting use of deadly force in self-
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defense); see also, e.g., State v. Jackson, 262 Kan. 119, 122-23, 936 P.2d 761 (1997). So, 

like the parties, we turn our focus to the third step and consider the factual 

appropriateness of a self-defense instruction. 

A requested instruction relating to a theory of defense, such as self-defense, is 

factually appropriate if there is sufficient evidence, when viewed in the light most 

favorable to the defendant, for a rational factfinder to find for the defendant on that 

theory. State v. Story, 301 Kan. 702, 710, 334 P.3d 297 (2014). We examine sufficiency 

against the applicable defense's legal elements, which in the case of self-defense are 

defined in K.S.A. 21-3211. Under that statute, deadly force can only be justified to the 

extent a person "reasonably believes deadly force is necessary to prevent imminent death 

or great bodily harm to such person or a third person." K.S.A. 21-3211(b). But the 

justification of self-defense "is not available to a person who . . . initially provokes the 

use of force against himself" unless he or she has exhausted every means to escape from 

imminent danger or has communicated the good-faith intent to terminate the use of force. 

K.S.A. 21-3214(3)(a)-(b); State v. Salary, 301 Kan. 586, Syl. ¶ 3, 343 P.3d 1165 (2015). 

This limitation makes the self-defense instruction factually inappropriate in this case. 

Knox and the other man or men approached Morris in his Mustang; there was no 

direct or circumstantial evidence suggesting that Morris provoked the confrontation. See

Salary, 301 Kan. at 596-97 (self-defense instruction not available to person who leaves a 

confrontation and then returns with a firearm); State v. Nelson, 291 Kan. 475, 481, 243 

P.3d 343 (2010) (rejecting claim that defendant was not the aggressor when he chose to 

go to victim's house after a verbal altercation hours earlier). Further, the circumstantial 

evidence indicates that Knox and the others ambushed Morris and fired the first shots. 

Several pieces of evidence lead to these conclusions. First, even after the shots 

were fired, neighbors could hear the Mustang's radio, suggesting that Morris had no more 
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than pulled up to the house when Knox and the others confronted him. And the jury also 

heard that Morris was Freeman's "boy" and that Freeman considered at least two of 

Knox's companions to be enemies. Finally, while no eyewitness testified to who fired the 

first shot, the forensic evidence eliminates the possibility that the first shot came from 

Morris. 

Specifically, blood and gunshot patterns indicate the first shots came from outside 

the passenger side of the car. Fears testified that the men were shooting at Morris before 

he exited his Mustang, and investigators found blood inside the Mustang. No physical 

evidence supports a conclusion that Morris fired a shot from inside the car. If Morris had 

fired first—or even somewhat contemporaneously with the six bullets that penetrated the 

Mustang from the passenger side—at least one of the bullet holes in Morris' Mustang 

would necessarily have been created from a shot exiting the car. But all of the bullets that 

damaged the Mustang came from outside the passenger side. And some of these bullets 

went through the rolled-up passenger side window, which leaves no room for arguing that 

Morris might have shot through an open window. Significantly, investigators did not find 

any fired bullet cartridges inside the Mustang or outside on the driver's side where Morris 

died. 

Thus, the evidence points only to Knox and his companions as the aggressors, 

aggressors that did nothing to escape from imminent danger or to communicate the intent 

to terminate the use of force. Even assuming Morris had a gun and at some point fired it, 

and assuming this was something other than an ambush, Knox's group clearly—without 

necessity—chose to walk down the street towards Morris and engage him in a gunfight. 

"The doctrine of self-defense cannot be invoked to excuse a killing done in mutual 

combat willingly entered into." State v. Barnes, 263 Kan. 249, 266, 948 P.2d 627 (1997). 
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The evidence in this case, even in the light most favorable to Knox, does not 

provide factual support for a self-defense instruction on Knox's behalf. As a result, the 

district court did not err in denying Knox's request for such an instruction. 

Issue 2: Did the district court commit clear error by failing to instruct on second-degree 

intentional murder?

Knox alleges another error arising from the failure to give a jury instruction. 

Specifically, he argues the district court should have sua sponte instructed the jury on the 

lesser included offense of second-degree intentional murder. Once again, Knox primarily 

focuses on the lack of an eyewitness to the events that happened before Fears got to her 

window. He argues this leaves a potential inference that Knox saw Morris with a gun and 

formed the intent to kill Morris instantaneously—without premeditation.

2.1 Standard of review and analytical framework

Our standard of review differs for this issue because, in contrast to the self-defense 

instruction, Knox did not request a lesser included offense instruction on second-degree 

intentional murder. When a party fails to object to or request a jury instruction at trial, 

K.S.A. 22-3414(3) limits appellate review to a determination of whether the instruction 

was clearly erroneous. The application of this standard consists of two parts. "[T]he 

reviewing court must first determine whether there was any error at all. To make that 

determination, the appellate court must consider whether the subject instruction was 

legally and factually appropriate, employing an unlimited review of the entire record." 

State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). Second, if the trial court 

erred, the reviewing court must conduct a reversibility inquiry. For the error to be 

reversible, the reviewing court must be "firmly convinced that the jury would have 

reached a different verdict had the instruction error not occurred. The party claiming a 
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clearly erroneous instruction maintains the burden to establish the degree of prejudice 

necessary for reversal." 295 Kan. 506, Syl. ¶ 5.

2.2 Assuming error, not reversible

Regarding the first stage of our analysis, the State does not dispute that a seconddegree intentional murder instruction was legally appropriate. Indeed, second-degree 

intentional murder is a lesser included offense of premeditated first-degree murder. See 

State v. Scaife, 286 Kan 614, 619-20, 186 P.3d 755 (2008). The State does dispute, 

however, whether an intentional second-degree murder instruction was factually 

appropriate. Nevertheless, we need not burden this opinion with the ins and outs of the 

parties' arguments on this point because, even if we presume that the instruction should 

have been given, Knox fails to firmly convince us that the jury would have convicted him 

of second-degree intentional murder rather than first-degree premeditated murder. 

While both second-degree intentional murder and first-degree premeditated 

murder are intentional crimes, first-degree murder has the additional element of 

premeditation. See State v. Jones, 279 Kan. 395, 401, 109 P.3d 1158 (2005).

Notwithstanding conflicting evidence about whether Morris held a gun, the evidence 

strongly established that Knox intentionally shot Morris with the intent to kill and did so 

with premeditation. 

"Premeditation means to have thought the matter over beforehand and does not 

necessarily mean an act is planned, contrived, or schemed beforehand; rather, 

premeditation indicates a time of reflection or deliberation." State v. Kettler, 299 Kan. 

448, 466, 325 P.3d 1075 (2014). A number of factors assist in determining premeditation: 

"'(1) the nature of the weapon used; (2) lack of provocation; (3) the defendant's conduct 

before and after the killing; (4) threats and declarations of the defendant before and 
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during the occurrence; and (5) the dealing of lethal blows after the deceased was felled 

and rendered helpless.'" 299 Kan. at 467 (quoting Scaife, 286 Kan. at 617-18). 

Here, Knox's group—at least two of whom had guns—strategically parked their 

vehicles and walked down the street towards Morris' Mustang as it pulled into the 

driveway. Even before Morris had a chance to turn off his conspicuously loud radio, the 

men shot at him from the Mustang's passenger side. The gun later found in Knox's 

possession—or his constructive possession, at least—had fired several of the bullets. 

After Morris fell to the ground, the men ran to the parked vehicles and fled the scene. 

One of the vehicles, the orange Avalanche, was painted black soon after. And within 

weeks of Morris' murder, Knox called to threaten Morris' friend—Freeman—telling 

Freeman, "We got your boy Laffy, now you and Shookie next." These circumstances 

strongly suggest planning. 

At trial, these circumstances were mostly undisputed. Knox primarily argued he 

had been misidentified and was not present during the shooting. Although he challenged 

the credibility of witnesses and highlighted conflicting evidence, those conflicts did not 

impact the circumstances that strongly suggested premeditation—the guns, ambushing 

Morris as he pulled into his driveway, and fleeing to waiting vehicles (one of which was 

soon repainted). Certainly, evidence of the subsequent threat against Morris' friend, 

Freeman, depended on Freeman's credibility. But even a juror who rejected some of 

Freeman's testimony might have given credence to Freeman's initial statement to the 

detective, which preceded his plea agreement. 

In light of this strong evidence of premeditation, Knox fails to firmly convince us 

that the jury would have returned a different verdict had they received the second-degree 

intentional murder instruction. See Salary, 301 Kan. at 602 (finding harmless error in the 

failure to instruct on voluntary manslaughter given strong evidence of premeditation). In 
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other words, even if the instruction was legally and factually warranted, Knox fails to 

establish clear error. 

Issue 3: Did the prosecutor improperly bolster the State's witness and disparage the 

defense so as to deprive Knox of a fair trial? 

Knox argues that prosecutorial misconduct during closing arguments prejudiced 

the jury against him and denied him a fair trial. Specifically, he contends that the 

prosecutor improperly bolstered Freeman's credibility and disparaged the defense. 

3.1 Analytical framework

This court utilizes a two-step process to review allegations of prosecutorial 

misconduct:

"First, an appellate court determines whether there was misconduct, i.e., whether 

the prosecutor's comments were outside the wide latitude allowed in discussing the 

evidence. Second, if misconduct is found, the appellate court determines whether those 

comments compel reversal, i.e., whether the statements prejudiced the jury against the 

defendant and denied the defendant a fair trial." State v. Armstrong, 299 Kan. 405, 416, 

324 P.3d 1052 (2014).

3.2 Prosecutor committed misconduct

Knox complains about the prosecutor's statements during closing argument in 

which she said that Freeman "was brutally honest on the stand," that he "was on the stand 

telling you the truth," and that "we asked [Freeman] to tell the truth, and that's what he 

wanted is he wanted street justice." Then, after the defense closing, in which Knox's 

attorney challenged the credibility of the State's witnesses and brought up their 
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inconsistent testimony, the State argued in rebuttal why witnesses might have testified as 

they did: 

"Remember in voir dire we talked about why would a person not want to testify? 

[Defense counsel] made a big deal about this, and you can use that now. Well, maybe 

they're not as educated.

"Darrius Freeman, 11th grade, not even a GED. Krystal Fears, 19 years old, 

because you have experienced attorneys where you're not experienced, [Defense counsel]

has about nine years of experience on top of a law degree. You think he has a little bit 

more experience than Krystal Fears? Yes. His job is to make them look like liars. That's 

his job and that's what he was trying to do." (Emphasis added.)

As Knox correctly argues, "[a] prosecutor should not comment on the credibility 

of his or her own witnesses." State v. Elnicki, 279 Kan. 47, Syl. ¶ 6, 105 P.3d 1222 

(2005); see Kansas Rules of Professional Conduct 3.4(e) (2014 Kan. Ct. R. Annot. 619-

20) ("A lawyer shall not . . . state a personal opinion as to . . . the credibility of a 

witness."). Here, the prosecutor's statements that Freeman was "brutally honest" and "was 

on the stand telling you the truth," while limited in context, were statements of the 

prosecutor's personal opinion regarding Freeman's credibility. As such, the comments 

were unsworn and unchecked statements that are not fair commentary on the evidence. 

See, e.g., State v. Bridges, 297 Kan. 989, 1013, 306 P.3d 244 (2013); State v. Stone, 291 

Kan. 13, 19, 237 P.3d 1229 (2010). More subtly, the prosecutor implied that Freeman and 

Fears were truthful when she argued defense counsel's job was to make them out as liars, 

suggesting to the jurors that any potential concerns they might have about the credibility 

of these witnesses stemmed from sly defense tactics rather than the evidence.

Furthermore, by representing the level of defense counsel's experience, the 

prosecutor argued facts not in evidence, which is misconduct. See State v. King, 288 Kan. 

333, 351, 204 P.3d 585 (2009). The prosecutor's statement that it was defense counsel's 
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job to "make [the witnesses] look like liars" disparaged the role of defense counsel in the 

adversarial process. Certainly, defense counsel uses the adversarial process to point out 

weaknesses in the State's case—areas where there may be a reasonable doubt. And doing 

so may sometimes expose a witness as a liar—i.e., as one who presents false information 

with the purpose of deceiving. See Webster's II New College Dictionary 531, 631, 633 

(1999) (defining "liar" as "[o]ne who tells lies" and "lie" as "[t]o present false information 

with the purpose of deceiving"). 

More often, defense counsel exposes the reality that eyewitnesses to stressful 

events, even when doing their best to be fully honest, vary in their perceptions of and 

ability to remember the details. Or, if a witness has repeatedly recounted the events to 

friends, family, investigators, attorneys, or others and has heard others accounts, defense 

counsel may reveal the false certainty that comes from repeating a statement. Other 

circumstances such as distance, light, distractions, fading memory, bias, or suggestive 

influence may be explored. Trials expose these realities, but these realities do not 

necessarily cast some witnesses as liars—ones who purposefully deceive—and others as 

automatons programmed to accurately recount events. To suggest the purpose of a 

criminal defense attorney is to take bystanders who happen to witness a crime and portray 

them as deceptive and dishonest demeans both the adversarial process and defense 

counsel's role in that process, and it is misconduct. See State v. Crum, 286 Kan. 145, 150, 

184 P.3d 222 (2008) (counsel may comment on trial tactics but cannot disparage

opposing counsel). 

3.3 Misconduct did not deny Knox a fair trial

In light of the misconduct, we must consider whether the prosecutor's comments 

prejudiced Knox and denied him a fair trial. Three factors control this analysis: 

"'(1) whether the misconduct was gross and flagrant; (2) whether it was motivated by 
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prosecutorial ill will; and (3) whether the evidence was of such a direct and 

overwhelming nature that the misconduct would likely have had little weight in the minds 

of jurors.'" Armstrong, 299 Kan. at 416 (citing Bridges, 297 Kan. at 1012). No single 

factor is controlling, but the third factor can override the first two factors only if "'the 

party benefitting from the error proves beyond a reasonable doubt that the error 

complained of will not or did not affect the outcome of the trial in light of the entire 

record, i.e., where there is no reasonable possibility that the error contributed to the 

verdict.'" Armstrong, 299 Kan. at 417 (quoting State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 

P.3d 801 [2011], cert. denied 132 S. Ct. 1594 [2012]) (noting application of both 

statutory and constitutional harmlessness analysis under Chapman v. California, 386 U.S. 

18, 87 S. Ct. 824, 17 L. Ed. 2d 705, reh. denied 386 U.S. 987 [1967], but recognizing 

that, as a practical matter, the outcome turns on the constitutional standard because it is 

more rigorous). 

In determining whether a prosecutor's comments are gross and flagrant, this court 

generally considers whether the statements violated well-established or unequivocal 

rules; emphasized improper points; or were repeated, planned, or calculated. Bridges, 297 

Kan. at 1015-16. Certainly, it is well established that a prosecutor cannot comment on the 

credibility of witnesses or discuss facts not in evidence. See, e.g., State v. Pabst, 268 

Kan. 501, 506-07, 996 P.2d 321 (2000). 

In this case, we do not deem the prosecutor's comments about Freeman, Fears, and 

defense counsel to be flagrant violations of this rule. The prosecutor's theme and repeated 

message to the jurors was that they should look at a variety of factors and use their 

common sense when assessing credibility. That by itself might not save the prosecutor 

from a gross-and-flagrant label, but, in context, the implication that the prosecutor 

believed the witnesses to be credible was very limited in scope and subtle. 
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Specifically, the comment that Freeman was "brutally honest" referred directly to 

his statement that he did not know what benefit he would receive from his federal plea 

deal. Given this context, one might interpret the prosecutor's statement as a warning to 

the jury that Freeman might be willing to say almost anything to improve his chances of 

favorable treatment in federal court. The second statement—"[h]e was on the stand 

telling you the truth . . . [and] we just asked him to tell the truth, and that's what he 

wanted is he wanted street justice"—were limited to Freeman's explanation as to why he 

did not cooperate earlier in the investigation. Again, while inappropriate, the prosecutor 

did not attempt to put her appraisal of honesty on all of Freeman's testimony. Also, the 

prosecutor encouraged the jury to conclude from Freeman's demeanor and his 

motivations that he was truthful, which was not misconduct. Finally, to the extent the 

prosecutor implied Freeman and Fears were truthful when she said that the defense 

counsel's "job is to make them look like liars," the implication is so subtle that we 

question whether jurors would have understood the improper message. And while that 

comment may have demeaned the defense somewhat, it is at least partially true and not 

overly offensive. Moreover, the statements about Freeman's and Fears' credibility and the 

defense counsel's "job" were couched in terms of asking the jurors to use their common 

sense and to recognize that Fears and Freeman did not ask to be witnesses. The 

prosecutor pointed out the length of time Fears spent on the stand and suggested she had 

become frustrated with the process of cross-examination; Fears even asked the judge if 

she could leave at one point.

With small alterations in word choice, each comment would have been perfectly 

appropriate. Consequently, we conclude the conduct was neither gross nor flagrant.

Second, this court considers whether the statements were motivated by ill will, 

which "is often 'reflected by repeated and deliberate misconduct'" or indifference to a 

court's ruling. Armstrong, 299 Kan. at 419 (quoting State v. Inkelaar, 293 Kan. 414, 430, 
20

264 P.3d 81 [2011]); State v. Marshall, 294 Kan. 850, 862, 281 P.3d 1112 (2012). Here, 

the prosecutor did not violate any express court order, and the honesty statements were in 

close succession, which taken alone is not typically viewed as being "repeated." Bridges, 

297 Kan. at 1016. And the prosecutor did not emphasize the statements. Read in full 

context, the prosecutor's remarks appear to be nothing more than a poorly worded attempt 

to make a legitimate argument—that the evidence established Knox's guilt and the 

defense's attempt to raise the specter of reasonable doubt should not persuade the jury. 

Additionally, as we have discussed, the scope of the prosecutor's remarks was limited. 

Given the subtle or limited scope of the statements, we find no evidence of ill will. 

Finally, we consider whether the State has satisfied its burden of proving "'beyond 

a reasonable doubt that the error complained of . . . did not affect the outcome of the trial 

in light of the entire record, i.e., [that] there is no reasonable possibility that the error 

contributed to the verdict.'" Armstrong, 299 Kan. at 417 (quoting Ward, 292 Kan. 541, 

Syl. ¶ 6). Certainly, credibility—the topic of prosecutor's misconduct—was a critical 

issue in this case and the testimony of the State's eyewitnesses was sometimes 

inconsistent. Nevertheless, as we have discussed, significant evidence supported the 

conclusion that Morris' murder was premeditated. And, while the defense attempted to 

disparage Fears' and Freeman's identification of Knox, other evidence corroborated their 

testimony. Notably, officers found a weapon involved in the murder in Knox's 

constructive possession. In addition, although there are reasons to suspect Freeman's 

testimony, especially after he struck a favorable plea deal, Knox's threatening phone call 

was revealed to Freeman's probation officer at a time when Freeman refused to cooperate 

in the investigation or to be a "snitch." Further, Fears' mother also identified Knox as a 

shooter. Finally, though improperly worded, the statements were made in the context of 

appropriate and correctly stated arguments thereby diluting their potentially prejudicial 

nature.
21

Examining the evidence as a whole and considering the context of the prosecutor's 

statements, we conclude the State has satisfied its burden of establishing beyond a 

reasonable doubt that the misconduct did not affect the outcome of the trial in light of the 

entire record. 

Issue 4: Did the district court improperly exclude evidence? 

Over defense objection, the district court granted two of the State's motions in 

limine. One motion resulted in an order prohibiting mention of the drugs and a rifle found 

inside Morris' Mustang. The other led to an order prohibiting mention of the drugs and 

guns found inside the residence at which Morris was parked when he was murdered. On 

appeal, Knox argues that the district court's exclusion of the evidence denied him his 

fundamental right to present his theory of defense.

4.1 Standard of review and analytical framework

A motion in limine is appropriate when: 

"(1) the material or evidence in question will be inadmissible at trial; and (2) the pretrial 

ruling is justified as opposed to ruling during trial because the mere offer or mention of 

the evidence during trial may cause unfair prejudice, confuse the issues, or mislead the 

jury; the consideration of the issue during trial might unduly interrupt and delay the trial 

and inconvenience the jury; or a ruling in advance of trial may limit issues and save the 

parties time, effort, and cost in trial preparation." Bridges, 297 Kan. at 995.

Here, although he briefly mentions that the evidence was not prejudicial, Knox only 

presents a challenge to the first part of the test—that is, to the admissibility of the 

evidence. 
22

A multistep analysis applies when a district court determines the admissibility of 

evidence. These steps require a court to (1) examine the relevance, (2) consider the 

application of any applicable rules of evidence, and (3) weigh the probative value of the 

evidence against any prejudice. 297 Kan. at 995-96; see K.S.A. 60-445. As we will 

discuss, Knox's arguments fail at the first step of establishing relevance. 

In examining relevance, courts must assess both the evidence's materiality and its 

probative nature. 297 Kan. at 995-96 (citing K.S.A. 60-401[b]; State v. Shadden, 290 

Kan. 803, 817, 235 P.3d 436 [2010]). An appellate court reviews a district court's 

determination regarding the materiality of evidence—its tendency "to establish a fact that 

is at issue and significant under the substantive law of the case"—de novo. The appellate 

court reviews the probative nature of evidence—the "logical connection between the 

asserted facts and the inferences they are intended to establish"—for an abuse of 

discretion. Bridges, 297 Kan. 989, Syl. ¶¶ 2, 5. 

4.2 The guns and drugs lacked relevance

Applying these standards first to the guns and drugs found in the house, Knox 

argues this evidence was relevant to his defense as tending to show that someone else, 

perhaps a rival drug dealer, was responsible for murdering Morris. Before the district 

court, Knox argued that the evidence was relevant because someone from inside the 

house could have shot Morris and most people would know that drug houses are 

inherently dangerous. The point of both arguments is to focus guilt on a third party. 

Yet, evidence of a third party's motive, on its own, will be excluded for relevance 

where nothing else connects the third party to the crime. See State v. Carr, 300 Kan. 1, 

197-203, 331 P.3d 544 (2014). And nothing in this case connects a third party to the 

crime. The simple presence of guns and drugs in a house that Morris never had a chance 
23

to enter does not lead to an inference that someone else was involved in Morris' murder. 

Witnesses saw two or three men walk towards Morris' Mustang, shoot Morris, and then 

leave in vehicles. No evidence suggested the involvement of anyone other than Knox and 

his companions; nothing implicated anyone who entered or exited the house. Nor was 

there any suggestion that Morris' murder had anything to do with the drugs and guns 

found in the house. Theoretically, a house with drugs and guns can be a dangerous place, 

but that alone has no tendency to show that an unidentified and unseen person from the 

house or an unidentified rival drug dealer killed Morris. 

As to the district court's ruling excluding evidence that Morris had a rifle stashed 

in the Mustang between the passenger seat and the center console, Knox claims had the 

jury known about the rifle, it would have more likely believed Fears' prior testimony that 

Morris was armed with a handgun when he died. Then it would have more likely 

convicted Knox of reckless second-degree murder. But Knox fails to explain a logical 

connection—any tendency in reason—between the jury believing Fears' prior testimony 

and its determining that Knox's killing of Morris was reckless. If anything, believing that 

Morris had a gun raises an inference that Knox intended to kill Morris before Morris 

could shoot Knox. This might be another piece of evidence Knox could point to in asking 

the district court to instruct on self-defense, but it would not overcome the legal 

impediment to that instruction; even under that scenario, Knox and his companions were 

the aggressors who provoked the shooting. 

Because the guns and drugs in both the house and Morris' Mustang were not 

material and probative to whether Knox murdered Morris, the district court did not err in

excluding the evidence. Knox's right to present his defense was not violated. 
24

Issue 5: Did the district court err in limiting Knox's cross-examination of Fears?

At trial, Fears testified that she did not want to be a witness, did not cooperate with 

police, and did not testify voluntarily. On cross-examination, she reaffirmed that she did 

not want to be involved in the case. Defense counsel followed with, "Aren't you, in fact, a 

witness in another case that—." At that point, the State objected for relevance. In a 

colloquy at the bench, defense counsel argued that pointing out Fears' involvement in 

another case would impeach her testimony that her involvement in Knox's case was "not 

cool in her life and she doesn't have time to be involved in this sort of thing." On appeal, 

Knox argues Fears' involvement in the other case would show that Fears' motivation for 

testifying went beyond the simple fact that she had witnessed Morris' murder.

From the arguments, it appears that Fears was somehow assisting, presumably as a 

fact witness, in another case. (Defense counsel told the district court, "It's my 

understanding that she's claiming to be a fact witness in [the other] case as well.") Yet, 

the sole fact that Fears assisted, somehow and in some way, in another case has no 

bearing on her credibility in this case without some understanding of why she assisted in 

the other case. Two examples illustrate the point. On the one hand, perhaps Fears 

willingly worked with the prosecution in the other case, just to be helpful—that would be 

impeaching. On the other hand, perhaps she witnessed another crime and was again 

dragged into criminal proceedings reluctantly—that would serve to corroborate her 

testimony that she was "frustrated," did not want anything to do with Knox's case, and 

did not have time for it. 

In other words, Knox may have a valid point that he should have been permitted to

cross-examine Fears about her motivation for testifying, but to make that determination 

we need to know more about Fears' involvement in the other cases. Yet, the record on 

appeal does not reflect any details that would shed light on her motivation. As the party 
25

seeking to admit evidence of Fears' involvement in the other case, Knox had the burden 

to ensure the record was adequate to make the determination. To meet that burden, he 

needed to proffer some details about that involvement. See State v. Evans, 275 Kan. 95, 

99, 62 P.3d 220 (2003). Importantly, the "[f]ailure to make a proffer of excluded 

evidence precludes appellate review because there is no basis to consider whether the 

trial court abused its discretion." 275 Kan. at 100. 

Without an adequate proffer regarding the details of Fears' involvement in the 

other case, this court has no way to assess the impeachment value of the evidence and no 

way to determine whether the district court abused its discretion. Consequently, this issue 

is not preserved and is unreviewable. See National Bank of Andover v. Kansas Bankers 

Surety Co., 290 Kan. 247, 274-75, 225 P.3d 707 (2010) (citing Evans, 275 Kan. at 99-

100). 

Issue 6: Did cumulative errors deny Knox a fair trial? 

Knox argues that multiple errors substantially prejudiced him and denied him a 

fair trial. There were two types of potential errors in this case: (1) the presumed but 

undecided error in the district court failing to provide a jury instruction on second-degree 

intentional murder, and (2) the prosecutor's misconduct. Considering those errors, we 

must exercise unlimited review over the totality of the circumstances in this case and 

determine whether the cumulative effect of the multiple errors substantially prejudiced 

Knox so as to deny him a fair trial. See State v. Backus, 295 Kan. 1003, 1016-17, 287 

P.3d 894 (2012). 

Actually, there were several instances of prosecutorial misconduct. Nevertheless, 

as we previously discussed, we are satisfied the State met the beyond-a-reasonable-doubt 

standard of Chapman, 386 U.S. at 24, in establishing that the prosecutorial misconduct 
26

did not impact the jury's verdict. Because the Chapman standard applies to that issue, the 

State—as the party benefitting from the error—must also establish that the cumulative 

error is harmless beyond a reasonable doubt. State v. Holt, 300 Kan. 985, 1007, 336 P.3d 

312 (2014). We must now consider the prosecutorial misconduct together with the 

presumed error in failing to instruct on second-degree intentional murder. 

Given the strong evidence of premeditation in this case, the omission of the 

second-degree intentional murder instruction was a minor error that adds little overall to 

the prejudicial nature of the errors in this case. Even considered together, we are satisfied 

beyond a reasonable doubt that the errors did not impact the jury's verdict. Although 

Knox did not benefit from a perfect trial, due process does not require perfection, only 

fairness. See State v. Todd, 299 Kan. 263, 287, 323 P.3d 829, cert. denied 135 S. Ct. 460 

(2014). Knox received a fair trial. 

Affirmed.

MICHAEL J. MALONE, Senior Judge, assigned.

1

 

1

REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 104,266 under 

the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the vacancy on the court 

created by the appointment of Justice Nancy Moritz to the United States 10th Circuit Court of 

Appeals.